Erlanger v. Erlanger

BARTLETT, J. pro tern.—

This is an appeal by the executrix of the estate of Bert H. Erlanger, deceased, from the decree of distribution entered therein. The portion of the will involved in this appeal is the following: “Second: I hereby direct that out of my estate shall be paid to my mother, Belle S. Erlanger, if she be still living at the time of my demise, the sum of Two Hundred Fifty Dollars ($250.00) per month for her support and maintenance;

“Third: I hereby will, bequeath and devise unto my beloved wife, Geraldine Erlanger, all of my property of which I may die possessed be it real, personal or mixed, or wherever the same may be located, to have and to hold subject to the following terms and provisions:

“I hereby direct that during the probate of my estate my executrix hereinafter named shall pay out of the income of my estate, if sufficient, and if not sufficient, out of my estate the sum of Two Hundred Fifty Dollars ($250.00) per month to my mother, Belle S. Erlanger, if she be still living;

“Fourth: I hereby direct that upon the close of my estate all of my assets shall be distributed to my wife, Geraldine Erlanger, and out of the income of said estate, she shall pay to my mother, Belle S. Erlanger, the sums above set forth, during her lifetime.” The portion of the decree of distribution which is under attack reads, in part, as follows: “To Geraldine Erlanger, subject only to the trust created in behalf of Belle S. Erlanger, mother of the decedent, to pay to

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her on the first day of each and every month during her lifetime the sum of $250.00 per month out of the income of the estate herein, and that if said income be insufficient, said Geraldine Erlanger shall invade the principal in order to assure and secure to said Belle S. Erlanger the aforesaid monthly payments. ’ ’ The only question before us is whether or not it was the testator’s intention that after the probate proceedings had ended the trustee, in the event the income was insufficient to pay the entire sum of $250 per month to respondent, should invade the principal of the trust estate created, to make up the difference.

The paragraph of the will numbered ‘‘Second” taken alone would be ambiguous as to how, when, from what and by whom the payments should be made. However, reading the clauses of the will marked “Third” and “Fourth” respectively, we see that possible ambiguities are cleared up and the provisions in regard to the payment of this income are clear, specific and certain. By the paragraph marked 1 ‘ Third ’ ’ the testator directed that during probate if the income from the estate was insufficient to make the payment of $250 per month, then the executrix should make up the difference out of the estate. The paragraph marked “Fourth” is equally unambiguous, clear and explicit and provides that all of the assets of the estate shall be distributed to appellant and “. . .