Blair v. Scribner

65 N.J. Eq. 498 | New York Court of Chancery | 1904

Emery, V. C.

(after statement of facts and issues).

The legacies given to the trustee “in bonds” begin with a specification of an amount of money intended to be given “in bonds,” and direct that the bonds are to be taken at their par value, while the legacies of stocks are simply gifts of a specified number of shares of stock, without reference to any amount of money or the face or other value of the stock. The questions as to the character of the legacies are therefore different in the two cases and the two classes of legacies are to be considered separately. As to the legacies of stock, these are> under the authorities, clearly general legacies, if the clause of the will creating the gift be alone considered. A legacy of shares of stock, given generally and_ without any indication that testator intended to bequeath particular stock held by him at the date of the will, or existing as a part of his estate, is a general legacy, and if the shares bequeathed are not in testator’s possession at the time of his death, the 'gift is considered to be a direction to the executors to purchase the securities for the legatee with his general- estate. Norris v. Thomson, 1 C. E. Gr. 218, 222 (Chancellor Green, 1863); 2 Wms. Exrs. (R & T. ed.) *1026; 3 Pom. Eq. Jur. § 1132; 2 White & T. Lead. Cas. (4th Am. ed.) 610. If the executors, having the power to purchase, fail to purchase, the legatee may then have in money the amount required to purchase the stocks. The legatee may, perhaps, have at once the option of receiving the money which was directed (constructively) to be laid out in stock, or of requiring the executor to purchase. But if the stocks cannot be purchased by the executor, because they no longer exist, and it is impossible to determine their value, the legacy fails. In re Gray, 36 Ch. Div. 205 (1887). If the legacies of stock in this case are general legacies, then the testator, by the subsequent provision that the executor shall not purchase the stock if it is not in his estate at his death, has, by express directions, prevented this legacy of this stock from operating or being equivalent to a direction to purchase, i. e., to a general legacy of the amount of money necessary to purchase the stock. No sum of money is mentioned by the testator in connection with the legacy of stock, and as the shares bequeathed are not in the estate and the executor is directed not to purchase them, the legacies of stock, if they be considered general legacies under the clause creating the gift, cannot be considered as legacies of the value in money of the stocks bequeathed, either at the date of the will or at testator’s death. But, in deciding whether a legacy of shares of stock is specific or general, the whole will must be considered and not merely the clause containing the gift or legacy. Norris v. Thomson, 1 C. E. Gr. 542 (Errors and Appeals, 1863); 2 White & T. Lead. Cas. (4th Am. ed.) 656, and cases cited. On the face of this will there is a clear indication that the testator, in making the legacies of stock, was specifying the stocks which he then owned. The words with which the "further meaning” clause opens, viz., "if I should not leave at my decease all of the bonds or stocks mentioned in my said will and given to my son in trust,” show that the testator, in the trust bequests, meant to give something then in existence and which he owned, and that the bequests to the trustee were of bonds and stocks, not of money legacies. The second portion of this clause, “he shall not be required to supply said bonds and stocks,” indicates also that the missing bonds and stocks, or bonds and stocks not left by him, were, at the time of the will, in existence and part of the property mentioned in the bequests. A direction, that if testator should not have sufficient stock standing in his name to answer the legacies of stock previously given, the executors should purchase sufficient to make up the deficiency, is considered to show that the testator meant to give something in existence at the time and that the legacies of stock are specific. Theob. Wills (4th ed.) 113, and cases cited; Townsend v. Martin, 7 Hare (27 Eng. Ch.) 471; Queens College v. Sutton, 12 Sim. (35 Eng. Ch.) 521. Independent, therefore, of the concluding words of this clause, “but only take such as I may leave,” the meaning of which is in dispute, I conclude, that by the other portions of the clause, the testator clearly shows that he intended, so far as the stocks are concerned, to give a specified portion of particular stocks owned by him at the date of the will, and that the legacies of the stock were specific and not general legacies.

The next question as to the legacies in stocks is whether, under the last paragraph of the “further meaning” clause, the executor can take stocks which testator left at his decease, other than those specified, to supply the stocks specified, which were not left at his decease. It is not claimed that, by the direction to take “such as I may leave,” the testator intended to give to the trustee all the stocks and bonds of any kind which he left, and it is clear that any “taking” by the trustee under this clause of other bonds and stocks than those specified cannot, at the utmost, go further than a taking by way of substitution for the original bequest, and cannot be enlarged by giving to the trustee whatever bonds and. stocks were left by testator in case any of the bonds and stocks specified were not left. The dispute over the construction of this clause, both as to the legacies of stocks and the legacies of money in bonds, comes down, therefore, finally to- this: Did the testator mean, “if I should not leave all of the bonds or stocks mentioned in the trusts the executor shall not supply said bonds and stocks [not left] but only take such [of said] bonds and stocks as I may leave;” or did he mean, “if I should not leave all of the said bonds or stocks mentioned in the trusts the executor shall not supply said bonds- and stocks [not left] but only take [in place thereof] such [other] bonds and stocks as I may leave,” -or “take such [other bonds and stocks] as I leave.”

I think the testator, throughout this “further meaning” clause, was referring to the stocks specially mentioned in the trust bequests, and to them only, and that, having in mind the contingency that he might not leave all the “bonds -and stocks mentioned,” he expressly directed that the executor should not be required to supply said stocks, i. e., those of the bonds and stocks mentioned which were not left at his decease, but, in the event of his not leaving all of the bonds and stocks mentioned, the executor should only take such of the bonds and stocks mentioned as were left. I think, also, that by using the words “but only take” the testator shows an intention to reduce rather than to enlarge the original gifts to the trustee.

If this be the true construction of the clause, then, whether the legacies of stocks are specific or-general, the legacies in stocks cannot take effect. If specific, they have been adeemed and their liability to ademption was intended and expressly provided for by the testator; if general, the direction that the executor shall not purchase or supply the stock forbids the treatment of the legacies as tire gifts of money. The reason for construing a general legacy of stock (without more) to be a legacy of money or of money’s worth is that, in order to give effect to the legacy and confer the benefit presumed to be intended by the testator, courts construe such general legacy as equivalent to -a direction to purchase the stock. Therefore, and as the result of that construction put on the terms of the gifts, the legatee, having the right to have as much money laid out in the purchase of stock, is considered to be entitled to the money. But the testator may indicate, as he has in this case expressly indicated, that the legatee is not to have the right to have the stock purchased, and if this right is taken away the right to have the money, which would purchase the stock, cannot be said to exist.

In the second place, if my construction of this “further meaning” clause be wrong and the phrase “but only take such as I may leave” means “take whatever stocks I leave,” or “take such [other] stocks as I may leave,” this bequest of “other” stocks must fail'for uncertainty. No value was fixed by testator’s will upon the stocks bequeathed, neither was there any reference in these legacies of stock as to the sum intended to be bequeathed in stocks. There is wanting; therefore, in testator’s will any basis or standard from which the court could distribute the stocks he left for the purpose of supplying the stocks specially mentioned, which he did not leave. The court should not undertake to supply the stocks on any standard or basis of its own without-being satisfied that there is an express and clear direction to the executor that he must supply the missing stocks from the other stocks left by testator. The “further meaning” clause is susceptible of a plain construction which, when taken in connection with the residuary clause, will provide for the distribution of all of the testator’s bonds and stocks according to explicit and particular directions by testator himself, and a construction of this clause which would leave the disposition of a large portion of his stocks, other than those specified in the trusts, to the executor or the courts should not rest on any uncertain or doubtful basis.

The legacies of sums of money “in bonds” occur in separate clauses from the legacies of stocks; they are made in different terms, and although “bonds and stocks” are mentioned together in the clauses giving directions to the executor and also in the “further meaning” clause, this association of them does not make the legacies so far of the same character that, if the legacies of the stock are held to be either specific or general, the legacies in bonds must also be considered to be specific or general. If these legacies were simply gifts of specified sums of money “in bonds” of a kind or kinds specified, without more, and these bonds were of such a character as are ordinarily purchasable in the market, the legacies, according to the authorities, would be general legacies. If these legacies are general legacies, then the “further meaning” clause would have the effect of destroying such general legácy, for the same reasons above stated, as to the general legacies of stocks. But the bonds referred to in these legacies are bonds of the kind specified, then owned by the testator. This appears not only from the “further meaning” clause which, as I have above stated, applies to the bonds as well as the stocks, but from a clause in the very gifts of the legacy: The gifts are of money in bonds, “to be taken at their face value.” This limitation excludes the idea that testator’s intention might be that the bonds were to be purchased by the executor from others, and shows the gifts were to be bonds taken by his executor as part of the estate received by him from testator. The testator, in giving a money legacy of specified amount in bonds at par value, could not have intended the amount of money specified to be used in the purchase by the executor of bonds owned by another at the par value of these bonds, irrespective of their actual value, or that an amount of money, equal to the par value of the bonds, should be used to purchase the bonds at their actual value, but must have intended that his own bonds should be specifically taken at a valuation which he fixed for the purpose of his will. If these legacies, therefore, are gifts of specified sums of money in bonds, which were referred to as then owned by testator, the question which arises as to them is whether they are specific or demonstrative.

The name and the legal concept of “demonstrative legacies” came from the civil law, and the illustration from this law of a legacy of this kind is given by Chancellor Kent in Walton v. Walton, 7 Johns. Ch. 262: “We have an example of this kind of money legacy given in the civil law and of the sound principle upon which the distinction is supported. The testator gave to Pamphila four hundred aurei, or pieces of gold, and referred to a debt which Julius, his, agent, owed him, and to his property in the army, and to his cash. (Aureos quadringentos Pamphilae dam volo, ita ut infra scriptum est; db Julio auctorie áureos tot; et in contris quos habeo, tot; et innumerato quos Jiabeo ioL.) He died without- altering Ms will, but after he had' converted all that .property to other uses, and the question was whether the .legacy was-due: The answer of Julian,- the'civilian’, was that the testator .intended only to point out to his heirs the ■ funds from which the- legacy could be most easily drawn: Without intending to. -annex- a condition to a pure gift, and that the' legacy was consequently -to be- paid.” After stating that the English decisions up to -that date turn- on very refined distinctions, Chancellor Kent gives- the following result of Ms careful analysis of the authorities in-cases of this character. Ib. 26P “The reasoning on this subject is,-that if -the legacy is meant to consist of the security, it'is specific, though'the'testator begins-by giving the sum .due upon it. A legacy of a debt, unless-there ' is ground for considering it a- legacy-of money- and that the se- • curity is referred to as the best mode- of-paying it; is as much specific as the legacy of a horse or any movable chattel whatever. If the specific -thing is disposed of or extinguished -the legacy is gone. * * * It is essentially a question of intention, when" we are inquiring into- the character of a legacy upon the distinction taken -in the civil law between a demonstrative legacy, where the testator gives-,a general legacy but points out the fund to satisfy it, and where he bequeaths a specific debt.”

To arrive at the testator’s .intention to make'the legacy specific or demonstrative the whole will must be considered, and the question is ■ whether upon the whole will it appears that the bonds or securities are intended merely as the primary source for the payment of a legacy in money, wMeh is to be paid at all events, or whether the bonds or securities specified are the things which are intended to be given and are the only source for tire payment of the -legacy. If the former,-the legacy is demonstrative, and on failure -of the primary source of payment the legacy, as one of money, is payable from the general estate; if the latter, tire legacy is a specific legacy of the bonds or securities, irot of the money in them or secured by them; and if the specific security bequeathed is disposed of or extinguished, the rule of ademption applies and the legacy is gone. 3 Pom. Eq. Jur. § 1133. This effect of -holding a legacy to be specific inclines courts, -in all cases depending upon this character of the legacy, to consider legacies opening with' the bequest of sums of money to be general or demonstrative rather than specific, and a clear intention must appear in order to make a legacy specific. Norris v. Thomson, 1 C. E. Gr. 218, 223; S. C. on appeal, 1 C. E. Gr. 542, 545; Johnson v. Conover, 9 Dick. Ch. Rep. 333, 340 (Vice-Chancellor Reed, 1896); affirmed on appeal for reasons stated, 10 Dick. Ch. Rep. 592. This inclination of the courts arises from the presumption that the testator intended a real benefit to the legatees, and in order to carry this intention into effect and protect legacies from the operation of a fixed and inflexible rule of ademption, which applies to specific legacies, the application of which rule the testator had apparently not foreseen or provided, courts are disposed to consider the legacies general or demonstrative, if the language of the will admits of such construction. In the present case, the fact that the testator, as grandfather, stood in loco parentis and was giving portions to the grandchildren and their issue, some of it for the education and support of infants, makes this rule of construction of the will specially applicable, so far as the case depends upon decid•ing the legacies to have been originally specific. But on the other hand, this inclination of the courts never extends so far as to give a strained or unreasonable construction, and in the present case is subject to the special and exceptional control of the “further meaning” clause, which shows that the testator had expressly in mind the contingency or fact upon which the rule of ademption comes into operation, and gave directions apparently to meet that state of facts. Cases like the present are always cases of construction of the special will in question, on consideration of its entire provisions, and beyond the application of the general rule that courts incline to consider the legacies general or demonstrative, so far as decision rests on its application alone, little assistance is to be obtained from an examination of the cases in detail and an attempt to follow or reconcile the refined distinctions sqmetimes made. In the fol-' lowing cases our own courts, applying the distinction above stated by Chancellor Kent and the rule inclining against specific legacies, have held legacies to be general or demonstrative rather ■ than specific. In Blundell v. Pope, 21 Atl. Rep. 456 (Vice-Chancellor Pitney, 1890), a bequest to testator’s wife of “bonds and mortgages or other securities of the value of twenty thousand dollars,” and others of like character were held to be general. In Langstroth v. Golding, 14 Stew. Eq. 49 (Chancellor Runyon, 1886), testator directed:

“Having $2,000 out at interest at seven per cent., it is my will that the said sum shall be kept invested by my executor till my granddaughter, E. N. J., shall arrive at the age of twenty-one years, when I direct that the said sum of $2,000 shall be equally divided between her and her husband,” &c.

. The testator had $2,400 thus invested. The legacy was held not to be specific, but general. In Johnson v. Conover, supra, the bequest was: “I give and bequeath unto my beloved wife, Margaret, the sum of eight thousand dollars, invested in stocks, the interest whereof to be paid to her during life,” and the legacy was held to be demonstrative.

In considering the question 'whether these legacies “in bonds” are specific or demonstrative, it is assumed that, in specifjnng the bonds in the trust bequests, the testator is referring to bonds then owned by him and part of his estate. For the reasons given, in considering the legacies of stock, I consider that the testator, in these legacies of money in bonds, also referred to the bonds existing in his estate. If he did not refer to existing securities owned by him, then the legacies in bonds are not demonstrative hut must be either specific or general. In either case they fail, for the reasons that the legacies of stock fail. But the whole case of the defendants, as to the bonds, is rested on the claim that the legacies in bonds are demonstrative, i. e., that they are legacies of sums of money, primarily payable from designated securities pointed out by the testator, and part of his estate, and that, these sources failing, they are payable either generally as money legacies or in the manner specially pointed out in the “further meaning” clause, as a second demonstration of the source of payment of the legacy of money “in bonds” of the testator in his estate at his death. Assuming, then, the legacies to- be legacies •of separate specified sums of money, in bonds of a specified kind, then owned by the testator, to be taken at their par value, the question is whether the testator intended to give separate sums of money, pointing out or demonstrating for each sum certain bonds which he then owned as a source of payment of the sum of money specified, but not the only source, or whether the testator intended to give separate specific legacies of bonds then owned by him, fixing the amount in money of each separate gift of bonds at the par value of the bonds. If he intended the former, the legacy is demonstrative; if the latter, it is specific. I think the latter construction to be clearly the meaning of the testator, and that effect cannot be given to the limitation of the legacy “in bonds” made by the clause “to be taken at their par value,” unless the gifts were specific gifts of the bonds. This limitation of the gift shows clearly, I think, that the testator did not intend to give at all events and unconditionally the money amount of the legacy, but intended the legacy to be of particular bonds owned by him, of a certain face value of money, which showed the number or amount of bonds given. This estimation by the testator of the value of his bonds or securities in money, for the purpose of fixing the amount of the legacy, is considered as an indication that the legacy is not demonstrative or general, but specific. 18 Am. & Eng. Encycl. (2d ed.) 719. In the present case one reason appears for the estimation of the trust bond bequests in money, and it is that the intention of the testator, by 'the bond bequests, was to equalize the grandchildren’s bequests by -deducting from the amount given each share or portion ($200,000 in five trusts and $206,000 in J. Blair Scribner’s) the amount already advanced, or intended to be advanced by the will, in cash, by the testator to each grandchild. The whole series of trust bequests in bonds and cash shows that the grandchildren and their children are made substantially equal and that for this purpose bonds at par are considered as cash. But the reference to the par value of the bonds was, as I think, mainly, if not altogether, for the purpose of indicating what number or amounts in each specified kind of bonds were to be taken.

Other portions of the'will, outside of the clause making the gifts of the legacies, show that bonds to an amount fixed by their par value were specifically given to- the trustee, and not sums of money equal to the face value of specified ’bonds owned by the testator. In three of the trusts, the Arthur • Scribner, Isabella Scribner and Clarence Mitchell, the first trust, upon which the • legacies are given, is to' deliver to each of these beneficiaries, on arriving at 'the age of twenty-one, “fifty thousand dollars in any of the bonds above specified which the said Arthur may choose to take, said bonds to be taken at their face value,” &c. If the- legatee prefers to have tire money, “then' the trustee shall sell and dispose of fifty thousand dollars of the most valuable of'the said bonds in this item specified and pay the proceeds of such sale” to the legatee. This shows that the specified bonds, and not money to the amount of the bonds, are intended to be taken by the trustee, and that the bonds are to be delivered by him for subsequent delivery to the legatee, or sale, at the option of the latter.

A gift or trust to sell or otherwise deal with bonds or securities is often held to indicate that the legacy is specific. Theob. Wills (4th ed.) 113; Ashton v. Ashton, 3 P. Wms. 384.

The further provisions in each of these trusts, that if the legatees prefer money, the trustee shall sell and dispose of $50,000 of the most valuable bonds mentioned in the item to raise tire money, and the fact that no other provision for the payment of this money is made than a sale of a portion of the boards specified, ¡show that, as to this portioir of these three trusts, the bonds are the only source for the payment of the money, and to this extent tire legacy cannot be demonstrative but must be specific. Some eases hold that where the security is the sole source of payment the legacy is specific. If, for the purposes of the trusts upon which these three legacies are given, or any part of these trusts, the testator has clearly indicated that the trustee is intended to take bonds only and not money to the amount of the boards, it will be difficult not to conclude that all the trust legacies in question were not specific legacies of boards. The fact that one gift is specific or demonstrative is sometimes taken as an indication that others are of the same character. And iir this case the general - similarity, I may say identity of plan aird purpose, of all the trust bequests (so far as the feature now in question is concerned) must give any special indication of testator made in anyone of the trusts weight in considering the character of the others. • ......

The next indication that the gifts were specific- is found in' the opening portion of the “further meaning” 'clause'.' The testator, in beginning this-clause and ref erring, to his trust bequests, uses words .which, on the face of them,' declare that the bonds were given to the executor. The language is: “If' I should not leave at my decease all'of the bond's or stocks men1 tioned in my said will and given to my son as' trustee.” This' reference to the bands as having been given is hot, and should not be, considered as decisive upon the- question now being considered, because it cannot be -said that it sufficiently appears from the clause itself that the ■ testator’s intention was specially directed,-in framing it, to the gifts as being legacies of money “in bonds” and not simply gifts of bonds) as’his-language would imply. But the words used by the' testator in' describing the gifts are entitled to proper consideration in connection with the terms-of the gifts themselves and the testator’s directions as to the disposition of the property given. And if these show that the gifts are clearly, or may fairly be considered specific gifts of bonds, the testator’s own language, describing his gifts as gifts of bonds and not as gifts of money, must have weight in deciding whether his primary intention was to give bonds or to give legacies of money. The provisions of the will to which I have referred indicate, and indicate clearly, as I think, that ‘ the original gifts as legacies in bonds were specific and not - demonstrative-.

I next come to the question of the effect of the “further meaning” clause upon the trust legacies “in bonds.” If the legacies “in bonds” as well as the legacies of stock are either specific or general, then the effect upon them of the ademption of the legacies and of this clause is the same as in the case of the legacies o-f- stock. As these legacies are, in my judgment, specific, they fail to the extent that the bonds specified were not left by the testator. But if it be 'held (1) that the bequests are demonstrative, and it be also- held (2) that under this clause the executor, in order to supply the missing bonds, is to take “whatever” or “such other” bonds as testator may leave, then the consideration as to the uncertainty which invalidated or made ineJIective the bequests of stocks will not apply to the’ lega- ’ cies “in bonds.” These begin as legacies of amounts of money, ■ and if the reference to the bonds be held to be matter of demonstration or description only, and, under the “further meaning” clause, whatever bonds testator leaves are to1 be taken for the amount of legacies in the missing bonds, and the amount of the legacy in money, or payable in the missing bonds, is to be paid from the other bonds left by testator at his decease, then bonds of the value of the legacy in money can be selected by the executor, subject, if, necessary, to appeal to the court by either party. Several other bases for “taking” bonds for these legacies of money in bonds were suggested by the answer, or at the hearing, but in the absence of any express and clear direction by testator this is, I think, the only possible method under testator’s will for paying these legacies, if they are held to be demonstrative. ' .

Evidence was taken in reference to the circumstances of the testator’s acquisition of the bonds and stocks, or some of them, and also as to his disposition of them, and some evidence also bearing, or claimed to bear, upon his habits and methods of business. So far as this evidence relates to the situation of the testator’s estate at the time of the' will, or to the disposition subsequently of property referred to in the will, this evidence is admissible and material for the purpose of applying the terms of the will. But the evidence as to his method of business, especially in relation to the acquisition and disposition of securities of the character referred to in the will, was to some extent relied on or urged as showing his intention in these bequests' and thus throwing light on the construction of his will. I have not considered the evidence, deeming it, in this aspect, clearly inadmissible for this purpose. Wills are required to be writing duly’ authenticated, and courts must construe the words used in the written will, using the same methods and rules of construction of the written document for all testators alike. To allow the special methods of business or habits of one testator (established by parol evidence) to give to the words of his will a construction different from that which would be given to the wills of other testators using the same words would, to that extent, subject wills to the perils of parol evidence, which the statute and the general policy of our laws wisely excludes.

Upon the principal question presented and argued I conclude that the direction of the court should be that the trustee, for the purposes of the several trusts included in these “items” of the will, called the “Grandchildren’s Trusts,” is to take only such of the bonds and stocks, specified in the several trusts, as were left by the testator, and is not to- supply bonds or stocks specified in the trusts, not left by the testator, from other bonds or stocks left by him, nor is he to pay in money from the estate the amount of the legacies “in bonds” which were not left in the estate. If there is any dispute as to whether any particular bonds or stocks left by the testator are to be taken as the particular bonds or stocks specified in the trust bequests, I will hear counsel further on this point. A memorandum will be filed later as to the other questions which have been submitted, but in the matter of the John D. Vail legacy I will postpone decision, pending application to take further evidence, which is referred to in the briefs of his counsel.

Pursuant to the leave reserved in my opinion a further hearing has taken place before me upon the question whether the bonds of the Fremont, Elkhorn and Missouri Valley Railroad Company, referred to in the bill and,held by the testator at the time of his death, pass to the trustee (to the amount of $100,000) under the several bequests of-bonds of that description. The" bonds of this company, held by the testator at the date of the will, were all subsequently surrendered by the testator to the company and in place thereof the bonds, held at the time of his death, were given, together with some subsequently disposed of in his lifetime. There was no reorganization of the company leading to this exchange. The identity required in these cases, in order to pass by a specific bequest, is a substantial identity, and a change which leaves the thing, to all intents and purposes, as it was before, does not effect ademption. The leading ease is Oakes v. Oakes, 9 Hare 666 (Vice-Chancellor Turner, 1852). In this ease there was a bequest of “all my Great Western shares and all the other railway shares which I shall be possessed of at the time of my decease.” Testator, at the date of the will, held £7,000 in shares of the Great Western Railroad Company. Subsequently, under authority of an act of parliament, these shares were converted into consolidated stock of the same company. It was said (at p. '672) that “the question is whether a testator has at the time of his death the same thing existing, it may be in a different shape, yet substantially the same thing,” and the consolidated stock was held to pass by the bequest. The rule laid down in this case has been followed without question. Theob. Wills (4th ed.) 128.

I conclude that the bonds of this description left by the testator at his death, received in exchange for those held by him at ■the date of the will, pass by the bequest to the trustee. By reason of this conclusion the amount left in the trusts is in■creased over the amount stated in my opinion.