Case Summary — In the Matter of the Petition of Oscar Clark Miller (App. Div. 1916)

Factual and Procedural Background

Sarah Akin executed a will on April 13, 1908, which by its 9th clause gave $25,000 in trust to trustees to invest and to pay the net income to her nephew, Oscar Clark Miller, for his life, with directions for disposition of principal after his death. Oscar was married to Julia A. Miller at that time. In a codicil dated May 12, 1909, Sarah Akin revoked the 9th clause and provided that the $25,000 trust income could, in the trustees' discretion, be paid either to Oscar, or to his wife Julia, or divided between them during Oscar's life.

Sarah Akin died April 29, 1910. The appointed executors and trustees, exercising their discretion, allocated the trust income (about $1,200 annually) in the proportion of approximately $400 to Oscar and the remainder to Julia up to July 1, 1913. The trustees' answer to the petition stated that Oscar had abandoned his wife and minor son in October 1908 and had not contributed to their support since that time.

On November 3, 1913, Oscar commenced an action for an absolute divorce in Nevada, alleging jealousy and cruelty by his wife, and the Nevada court entered a decree dissolving the marriage on December 23, 1913. Oscar then notified the trustees (December 27, 1913) that Julia was no longer his lawful wife and instructed them to cease payments to her. The trustees replied they would pay the entire accrued income to Julia and none to Oscar, asserting that decision was within the trustees' discretion under the codicil and that Oscar had no legal or equitable right to the payments; they also challenged the validity of the Nevada decree.

Oscar petitioned for a decree directing the trustees to pay the whole net income to him, claiming the Nevada divorce terminated Julia's entitlement as his wife. The surrogate denied the petition on the ground that the Nevada decree was invalid and would not be recognized by New York (Matter of Akin, 89 Misc. Rep. 690). The case was appealed to the Appellate Division.

Legal Issues Presented

Whether the Nevada decree dissolving the marriage between Oscar and Julia Miller removed Julia's entitlement to receive trust income under the codicil to Sarah Akin's will.
Whether the trustees' exercise of discretion to pay the whole net income to Julia Miller (and none to Oscar) was subject to judicial disturbance or otherwise invalid.

Arguments of the Parties

Appellant's (Oscar Clark Miller) Arguments

Oscar asserted that the Nevada judgment dissolved the marriage and, as a consequence, Julia ceased to be entitled as his wife to any portion of the trust income.

Respondents' (Executors and Trustees) Arguments

The trustees contended that their determination to pay the entire net income to Julia Miller and to pay none to Oscar was within the discretionary authority conferred upon them by the codicil.
They asserted that Oscar had no legal or equitable right to any part of the net income.
They also raised the invalidity of the Nevada decree as a defense to Oscar's claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Schult v. Moll, 132 N.Y. 122	Cited for the proposition that descriptive words (such as "his wife") may be words of description rather than conditions to entitlement.	Used to support the conclusion that the phrase "his wife" was descriptive only and did not make entitlement contingent on continued marital status.
Wait v. Wait, 4 id. 107	Cited for the same descriptive-words principle regarding testamentary language.	Relied on to interpret the codicil's language as non-conditional with respect to marital status.
Salvin v. Salvin, 165 App. Div. 363	Cited in support of treating identifying words as descriptive rather than imposing a condition.	Included among authorities justifying the court's interpretive conclusion about the phrase "his wife."
Durian v. Central Verein of the Hermann's Soehnne, 7 Daly, 168	Cited for the general rule that descriptive words in testamentary instruments do not necessarily create conditions.	Applied as authority for construing the codicil's reference to "his wife" as descriptive.
Overhiser v. Overhiser, 63 Ohio St. 77	Offered as supporting authority that descriptive references do not impose conditions on testamentary gifts.	Used to bolster the court's construction that entitlement to income did not depend on continued marital status.
Bachmann v. Supreme Lodge Knights and Ladies of Honor, 44 Ill. App.? 188	Cited among cases illustrating that identifying language may be descriptive only in construing testamentary provisions.	Relied upon to support the court's interpretation of the codicil and the trustees' discretion.

Court's Reasoning and Analysis

The court declined to resolve the question of the Nevada decree's validity because it found that resolution unnecessary to the disposition of the petition. The court analyzed the codicil's language and concluded that the words "his wife," which precede the name "Julia Miller," functioned as words of description only and did not create an express or implied condition that Julia remain Oscar's wife in order to be eligible to receive such portion of the trust income as the trustees might allocate to her.

The court cited a series of authorities (listed above) in support of that interpretive principle. Having determined that the entitlement of Julia Miller did not depend upon her marital status relative to Oscar, the court then observed that the codicil explicitly vested the executors and trustees with discretionary authority to pay the whole of the net income to Julia. Because the trustees had exercised that discretion in her favor, the court held that their decision could not be disturbed by the petitioner.

Holding and Implications

Holding: Decree affirmed, with costs.

Implications:

The Appellate Division affirmed the surrogate's denial of Oscar Clark Miller's petition; the trustees' determination to pay the entire net income to Julia Miller was upheld as a valid exercise of the discretion conferred by the codicil.
The court explicitly refrained from deciding the validity of the Nevada divorce decree; it held that Julia's entitlement under the codicil did not depend on her continued status as Oscar's wife, and therefore the question of the decree's validity was unnecessary to the decision.
No broader change in law was announced beyond the court's interpretation of the codicil in this case; the direct effect is that the trustees' allocation to Julia stands and Oscar's petition for payment of the income to him was denied.

Judges Clarke, P.J., Scott, Smith and Page concurred. Opinion by Dowling, J.

Show full summary ...

In the Matter of the Petition of OSCAR CLARK MILLER for a Decree Directing Payment, etc., to Him by Testamentary Trustees Pursuant to Section 2689 of the Code of Civil Procedure — Estate of SARAH AKIN, Deceased. OSCAR CLARK MILLER, Appellant; ALBRO AKIN and B. AYMAR SANDS, Trustees, and JULIA A. MILLER, Respondents.

DOWLING, J.:

Sarah Akin made her last will and testament on April 13, 1908, and thereby, among other legacies, by the 9th clause thereof gave and bequeathed to her trustees the sum of $25,000 in trust, to invest the same, "to collect the rents, income and profits thereof, and to pay the net income arising therefrom to my nephew Oscar Clark Miller during the term of his life," with directions as to the disposition of the principal after his death. Oscar Clark Miller was then married to Julia A. Miller. The answer of the trustees to the petition herein sets up that Miller abandoned his wife and minor son in the month of October, 1908, at Atlantic City in the State of New Jersey, and for that reason decedent executed a codicil to her will on May 12, 1909, the sole change made in the original will being as to the 9th clause thereof containing the bequest of the life estate to Miller. As to this the codicil provided:

" Second. I revoke the Ninth clause of my said will, and in place thereof I provide as follows: I give and bequeath to my trustees the sum of Twenty-five thousand ($25,000), to Have and to Hold the same for the following uses and purposes: to invest the same in such securities as are directed in my said will in respect to such sums as are given in said will to my trustees in trust; to collect the rents, income and profits thereof, and in their discretion, and from time to time, to pay the whole of the net income arising therefrom either to my nephew, Oscar Clark Miller, or to his wife, Julia Miller, or a portion of such net income to one, and the remaining portion to the other, during the term of the life of the said Oscar Clark Miller."

Then followed the provisions as to the disposition to be made of the principal of said trust fund upon the death of Miller, in the happening of certain contingencies. Sarah Akin died on April 29, 1910, and her will and codicil were duly admitted to probate and letters testamentary issued to the executors and trustees named therein, who duly qualified and have continued to act as such. Pursuant to the authority given them by the will and codicil, and exercising their discretion as thereby allowed, the executors and trustees divided the income from said trust fund, amounting to approximately $1,200 per annum, in the proportion of $400 to Miller and the balance to his wife up to and including July 1, 1913. Miller has not contributed to the support of his wife or minor son since October, 1908. On November 3, 1913, Miller began an action for an absolute divorce against his wife in the Second Judicial District Court of the State of Nevada, in and for Washoe county, based on allegations of jealousy and cruelty on the part of his wife. His complaint in that action showed that they were married in the State of New York on June 15, 1893; that his son was then nineteen years of age, and that he himself had been a resident of the State of Nevada for upwards of six months. Upon Miller's affidavit that his wife resided at Atlantic City, in the State of New Jersey, an order was made for the publication of the summons in the Reno Evening Gazette and for the mailing of a certified copy of the complaint to his wife at an address given in Atlantic City, N.J. The petitioner presented proof of personal service of a certified copy of the complaint, attached to a copy of the summons, upon his wife at Atlantic City, N.J., but offered no proof of publication or mailing, and has produced no Nevada statute authorizing a departure from the terms of the order of publication. Mrs. Miller never appeared or answered in the Nevada action, and on December 23, 1913, the Nevada court gave judgment in favor of Miller dissolving the marriage between him and his wife and freeing each of the parties "from the bonds of matrimony and all of the obligations thereof." Then on December 27, 1913, his New York attorney notified the executors and trustees of the Akin estate of the granting of the Nevada decree, by reason whereof "the said Julia A. Miller is no longer the lawful wife of said Oscar Clark Miller. You are therefore hereby required and notified to pay no further sums of money or installments to said Julia A. Miller, for or by reason or on account of any legacy or bequest given by or under the provisions of said above-mentioned will, to said Oscar Clark Miller or to said Julia A. Miller, as his wife named therein, or to any other person or persons whatever acting on behalf of said Julia A. Miller." The reply of the executors and trustees was "that in the exercise of the discretion thereby [ i.e., by the will] granted them, they will, on the 7th day of January, 1914, pay the entire net income of said trust fund accrued to January 1st, 1914, to Julia Miller, and that no part of the same will be paid to Oscar Clark Miller." The answer of the executors and trustees sets forth: "They allege that their determination to pay no part of said net income to Oscar Clark Miller, but to pay the whole of the same to said Julia Miller is within the limits of the discretion conferred upon them by the terms of said will, and that said Oscar Clark Miller has no legal or equitable right to the payment to him of any part of said net income." They also set up the invalidity of the Nevada decree. Petitioner has brought this proceeding to obtain a decree for the payment and delivery to him by the executors and trustees of the whole of the net income from the trust fund in question. His claim is that as the Nevada judgment dissolved the marriage between himself and his wife, the latter thereby ceased to be entitled as his wife to any portion of the trust income. The learned surrogate has denied the petition upon the ground that the Nevada decree was invalid, no jurisdiction ever having been acquired in that State of Julia Miller, and that the courts of this State would not recognize the decree. ( Matter of Akin, 89 Misc. Rep. 690.) We do not consider it necessary to discuss the validity of the Nevada decree, for we do not believe that the right of Julia Miller to receive such share of the income from the trust fund as the executors and trustees might allot to her in any way depends upon her status as Miller's wife. The words "his wife," used in the codicil preceding the words "Julia Miller," were words of description only, and there was no condition, express or implied, that she should remain his wife in order to be entitled to take such sum as the executors and trustees might decide to pay to her. ( Schult v. Moll, 132 N.Y. 122; Wait v. Wait, 4 id. 107; Salvin v. Salvin, 165 App. Div. 363; Durian v. Central Verein of the Hermann's Soehnne, 7 Daly, 168; Overhiser v. Overhiser, 63 Ohio St. 77; Bachmann v. Supreme Lodge Knights and Ladies of Honor, 44 Ill. App.? 188.)

By the terms of the codicil the executors and trustees were explicitly empowered, in their discretion, to pay the whole of the net income to Julia Miller, and having determined to exercise that discretion in her favor, their decision cannot be disturbed. The decree appealed from will, therefore, be affirmed, with costs.

CLARKE, P.J., SCOTT, SMITH and PAGE, JJ., concurred.

Decree affirmed, with costs.

MATTER OF MILLER