Cammann v. Whittlesey, 75 N.Y.S. 702

Cammann v. Whittlesey

75 N.Y.S. 702 | N.Y. App. Div. | 1902

Lead Opinion

O’Brien, J.:

We concur writh the referee in his conclusion and for the reasons stated by him, that interest should be charged on the $6,000 mortgage for the year following the granting of letters testamentary. It seems anomalous, however, that he should have reached the further conclusion that the legatee was chargeable with interest that accrued on the $10,000 mortgage beyond that time.

Undoubtedly there is a distinction between the two mortgages growing' out of the fact that the testator held one at his death, while the other, the $10,000 mortgage, was at that time the property of.his wife; and, owing entirely to this consideration, the referee held that while the $6,000 mortgage was a demonstrative legacy, the one for $10,000 wás neither a specific nor a demonstrative legacy, and that as -its purchase could only be made with funds raised through the sale of the Fordham property, it was payable in *604the same way as the remaining legacies in the 12th- clause; namely, after such sale, and that interest-ran only after the date so fixed. The results of thé decision of the referee are, the legatee receives the $6,000 mortgage as of a date one year after the granting of letters testamentary, but the transfer to her of the $10,000 mortgage is made as of such time as it was purchased by the executors, which purchase could be deferred until the Fordham property was to be sold. The referee has' correctly stated the general rule upon the subject, of when interest runs upon legacies and the distinction made in the cases between specific, demonstrative and general legacies; but we think he has.overlooked what is, after all, the controlling principle in all cases involving the construction of wills, and that is the intention of the testator, blot withstanding the difference in his relation as to the ownership of the. two mortgages, it is reasonably certain that the testator intended to make no distinction as to the benefits which the legatee was to receive from the transfer to her of both mortgages, because he distinctly states that if he did not own the $10,000 mortgage at his decease, then his executors were to purchase it in order to comply with his wishes, which were that in part payment of her legacy of $20,000 his niece should receive the. two mortgages and the remaining $4,000 in money. Although, therefore, this was not, strictly speaking, a specific legacy, it was in the nature of such; and the testator, having in mind the fact that there rested upon thé legatee the obligation of paying not only the principal, but also the interest, of the two mortgages, intended, as is fairly inferable from the context, that these obligations should not be extended, as in the case of the other legacies in the 12th clause, 'until the time arrived for the sale of the Fordham property. He ■thought, no doubt, that at sometime between the making of his will and his death this mortgage of $10,000 would come into his possession, or else that after his death his executors might arrange the matter with his wife ; but, either failing, he gave the express direction to his executors that if he did not at his death own the mortgage, they were to purchase it. Had he owned it at his death, •clearly the rights of the legatee therein would have been the. same ■ as to the $6,000 mortgage.

' In -view; therefore, of the evident intent of the testator, as 'shown'-by the exact provision he made as to the manner of pay*605ment of this legacy, we think the referee gave undue weight to legal definitions and artificial rules which, in doubtful cases, are necessarily resorted to for the purpose of construing and administering wills, but which must give way and can play no part where the intent is clear. Our reading of this 12th clause of the will before us, providing, that the Whittlesey legacy of $20,000 is payable in a specified and different manner from all the other legacies embraced in that clause, is, that the testator intended that his niece should receive the benefit of these mortgages and that in this connection he did not intend to make any distinction between the $6,000 and the $10,000 mortgage.

Our conclusion, therefore, is that the referee erroneously charged the legatee with the interest which had accumulated on the $10,000 mortgage during the period beyond the year after the letters testamentary were issued and that the judgment appealed from should be modified in that respect and as so modified affirmed, with costs to the appellant payable out of the estate.

McLaughlin, Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Dissenting Opinion

Van Brunt, P. J. (dissenting):

I agree that it is anomalous that the referee did not charge interest on the $6,000 mortgage as well as on the $10,000 mortgage ; and I am of the opinion that he should have charged interest upon both. The mortgagor was bound to pay the interest Upon these mortgages until the legacy of $20,000 became payable, which it is conceded would not occur until the Fordhatn Heights property was sold. It is entirely immaterial as to who held these mortgages. The bonds accompanying the mortgages were debts of the mortgagor, and they naturally drew interest until the time came for their being turned over to the mortgagor in part payment of the $20,000 legacy when such legacy became due. It might just as well be claimed that the mortgagor was entitled to recover interest upon the sum of $4,000 which was to be paid in cash, as that she was not to pay interest upon her debts until, under the terms of the will, it became proper for the executors to discharge the same.

Judgment modified as directed in opinion, .and as modified affirmed, with costs to the appellant payable out of the estate.