Although a provision in a will, made in the mistaken belief, persisting until the testator's death, that a certain state of facts exists, cannot ordinarily be said to be specifically and expressly applicable to the true circumstances, nevertheless it does not necessarily follow that the provision in question is thereby nullified; in such a case, the will is to be examined to discover, if possible, whether the actual situation was within the intent of the testator when he made the provision. In 1916 the testator executed his will in which he gave three equal quarterly shares of his estate outright to his son and two married daughters. The fourth share was left in trust, the income to be paid to his remaining daughter, Annette, during her life with the provision that in the event of her marriage, "the trustees shall pay over and deliver to her the whole amount of said trust fund as soon after her marriage as may be convenient and reasonable, and upon such payment, said trust shall forever cease and determine." The testator then, and until his death in 1919, believed that Annette was a single woman, whereas in 1899 she had been secretly married to K, with whom she lived for a total of twenty-one days during the succeeding four years, since which time she has never seen him, and she now has no knowledge as to whether he is dead or alive. The trustees brought the present suit to determine whether, under the will, Annette is entitled to the principal of the fund. Held: 1. That, since the testator had placed no restrictions or conditions upon Annette's marriage and had not attempted to define the kind of union which should entitle her to the fund, it was the duty of the trustees immediately to distribute the principal to her. 2. That the costs and expenses of the suit should be borne by the entire estate.
CURTIS, J.
The plaintiffs have well summarized the situation presented by this reservation in two statements, as follows:
1. Whether Annette's marriage was such a marriage in time or circumstance as the testator meant to refer to in subdivision (4) of the seventh clause of the will, and if so, whether the duty of the trustees is to turn over the corpus of the trust property to Annette, or whether Annette only has a life interest, involving a continuation of the trust.
2. Whether the expenses and counsel fees of these proceedings should have been thrown on the entire estate of the testator, or whether the one-fourth share of the residuum in which Annette is interested ought to bear them.
That the controversy between Annette and the trustees should be determined by the intent of the testator, if such intent can be found in the will, is unquestioned. It is apparent that when a testator makes a will in the belief that a certain state of facts exists which he provides for, and when it later appears that the state of facts he then believed to exist did not exist, and his death occurs before he learns of the actual situation, it is inevitable that his will ordinarily does not provide specifically for the unknown state of facts. If he makes provision for a certain contingency, as for the marriage of a daughter whom he believes is unmarried, and it appears after his death that the daughter was in fact already married when he made the will, this fact could not reasonably be deemed to necessarily nullify the provision in the will which was to become operative on her marriage.
In such a case the will is to be examined to discover, if possible, whether such a prior marriage is a marriage which falls within the intent of the testator when he made the provision.
We are therefore to seek to discover in this case whether the marriage of Annette in 1899, which was unknown to her father when he made his will in 1916, and when he died in 1919, could reasonably be deemed to be such a marriage as he provides in his will shall determine Annette's right to have the corpus of the trust in her favor turned over to her. What does the marriage of Annette signify as used in the will? It does not signify a marriage to any particular person, or any particular kind of a person, or a marriage adapted to any particular result, beyond the possible protection and advice incident to having a husband. That is, it is not a marriage insuring either issue, or independent support, or any type of husband. Marriage implies merely the existence of the state of being married. The will says: "In the event of the marriage of my said daughter Annette . . . then I direct that said trustees shall pay over and deliver to her the whole amount of said trust fund as soon after her marriage as may be convenient and reasonable, and upon such payment said trusts shall forever cease and determine."
The testator's intent is clear, not to make restrictions as to her marriage. His intent seems to be clear also to make all daughters, if married, stand upon an equality in sharing his estate. The provisions of clause seven disclose this.
It seems highly unreasonable to hold that the testator's intent must be confined to a subsequent marriage, in view of his total lack of restrictions as to the kind of a husband that he meant her to marry. Deeming that by the words "event of marriage" the testator meant merely the existence of a state of marriage, his intent to that effect would include the effects of a prior as well as a subsequent marriage.
We think the terms of the will disclose an intent that when Annette is found to be a person in the state of marriage, she is entitled to the corpus of the trust fund provided in the seventh clause of the will.
Questions one, four and six should be answered "Yes."
Question two should be answered "Yes, the whole net amount."
Questions three and five should be answered "No."