70 N.Y.S. 833 | N.Y. App. Div. | 1901
Margaret Shelley, deceased, made, executed and published her last will and testament on the 12th day of March, 1891. By this will she undertook to dispose of her property, the sole beneficiary being the plaintiff herein, in the following words :
“ Second. I give, devise and bequeath my one-half interest in the building known as number twenty-two (22) Oliver' street in the Fourth Ward.of the City of New York, unto my daughter Lizzie, wife of Emanuel Amotrono,* of the City of Brooklyn, County of Kings, State of New York, and to her heirs and assigns forever.”
Mrs. Shelley owned the one-half interest in the property mentioned as tenant in common with her husband, and in 1896 the city of New York, acting under its power of eminent domain, instituted proceedings for the condemnation and purchase of this property. On the twelfth day of June in that year the report of the commissioners in condemnation proceedings was confirmed, and the real estate was taken by the city; and although it appears that there was some informality, Mrs. Shelley, not having been brought into the proceeding, the plaintiff waived this question upon the trial. It was conceded that she received one-half of the net proceeds of the sale, after the payment of" an outstanding mortgage, and that the sum of $4,9.00 was deposited to her credit in the Washington Trust Company on February 8, 1897. On September 21, 1898, Mrs. Shelley drew $119.04 interest and $400 of the principal from this fund, and on February. 21, 1899, she died, leaving an estate consisting of the $4,500 remaining of the proceeds of the sale of the Oliver street property under the condemnation proceedings. Upon the "trial of the action, brought for the purpose of getting a judicial construction of the will, the learned court at Special Term held that the sale of the specific real estate devised to the plaintiff operated to revoke the clause of the will above set forth, and from the judgment entered appeal comes to this court.
Our attention is directed, to many expressions of the rule that in the construction of wills the intent of the testator must be sought and given effect where such result is not contrary to the law, and it is urged with much force that the intent of the testatrix to dispose of all her property is clearly evidenced in the will now before us.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.
Sic.