114 N.E. 351 | NY | 1916
Testatrix was a widow who had in 1896 received a considerable amount of property from her husband's estate. She made her will in July, 1900. She died in December, 1911. The general legacies given by her will aggregated $132,200. They are not specifically charged upon the real estate. She left personal property, exclusive of specific bequests, amounting to less than $82,000. She also left real estate not specifically devised. In 1903 she had expended $29,500 in the purchase of real estate specifically devised. The trial court found and the Appellate Division has not disturbed the finding, that "when she made her will, the testatrix possessed and knew or believed she possessed, exclusive of personal property specifically bequeathed by her will," the sum of $97,589.77. Upon the finding that "testatrix intended and did charge the general pecuniary legacies mentioned *301
in her will upon her real estate not specifically devised," the Appellate Division was not unanimous in affirming the judgment of the trial court, and the first question to be considered here is whether such finding is based on sufficient evidence. The principles to be applied in determining whether a legacy is charged by implication upon the real estate of a testator have been frequently stated and were recently considered in this court in Ely v. Megie (
In the case before us we have, as evidence of intention of the testatrix at the time of making the will, many legacies to relatives and strangers aggregating $132,200, to be paid, together with debts and expenses of administration, out of a fund which was about $35,000 less than the amount of the legacies. We have also the incidents of a power of sale, a mingling of real and personal property in a residuary clause, and a direction for the payment of the transfer tax out of the residue, all of which harmonize with an intention to charge the real estate.
In the Ely case Judge HOGAN says the suggestion is incredible that testator should at the end of his days, with full knowledge of his affairs, intend to leave a wholly inadequate fund from which to pay his legatees and to die intestate as to his real estate. The fund here is not so inadequate as to carry that suggestion. Testatrix owed no debts. She may have expected to increase her estate. The personal property is not disposed of in such fashion that unless the legacies are charged on the real estate the natural objects of testatrix's bounty receive nothing, or less than equity suggests as their share. It would not be "a mockery and an absurdity" to impute to testatrix an intention that the legacies should not be *303
paid if the personal estate was insufficient. (MILLER, J., inScott v. Stebbins, supra.) At the same time we cannot give effect to the entire plan and purpose of the will without charging the legacies upon the real estate not specifically devised. Whether or not when she executed it she expected that such real estate would be sold to pay legacies we cannot say, but we can say that everything in the will is consistent with such an intention, and that the power of sale and the blending of real and personal property in the residuary clause compel the conclusion that she intended to mingle the personal and the real not specifically devised in a common fund. While we should not vex established rules to sustain mere conjectures, the artificial distinctions between wills of real and personal property should not be magnified when the circumstances surrounding the execution of the will permit the conclusion from the language thereof that the testatrix intended that the legacies should be paid (Bevan
v. Cooper,
The next question has to do with the proper construction of the residuary clause.
In July, 1900, when the testatrix made her will, she owned an undivided one-half of premises called parcel C, an undivided one-half of the premises at Hempstead on which she resided (which clearly enough included parcels A, B and D), the whole of parcel F on Washington street and an undivided half of parcel E. She devised to her sister, Julia A. Harper, "all my right, title andinterest" in parcel C and in parcels A, B and D and "the wholeof" parcel F. By the residuary clause she gave one-half of the rest, residue and remainder of her property to her said sister, and the other half to Sarah E. Skillin and her *304
children. Three years thereafter she acquired the other one-half interest in parcels A, B and D from her sister Julia. Her interest in parcel E was disposed of before her death. The question is whether the subsequently acquired interest in parcels A, B and D passed under the devise to her sister or under the residuary clause. The will passed all the real estate which testatrix owned at the time of her death (Decedent Estate Law, § 14), and according to a well-settled rule speaks from the time of the death of testatrix. (Nellis v. Nellis,
In England by the 24th section of the Wills Act (7 Wm. IV and 1 Vic. ch. 26) it is provided that "every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention shall appear in the will." (28 Halsbury's Laws of England, 691; Saxton v. Saxton, L.R. [13 Ch. Div.] 359.) The rule has been formulated somewhat differently in this state. A devise of real estate, universal in its terms, would carry after-acquired land without language pointing to the period of testator's death, but in the absence of unlimited terms in the will there must be language which will enable the court to see that the testator intended it to operate upon real estate which he should afterwards purchase. (Lynes v. Townsend,
The provisions for S. Amelia Skillin, Florence Skillin Cloyd, Simeon D. Skillin and Sarah E. Skillin in the eighth, ninth and tenth clauses of the will are for the legatees individually and not as a class. (Matter of Kimberly,
Costs were properly allowed to defendants. (Code Civ. Pro. § 3253, subd. 2; Allen v. Stevens,
I recommend that the judgment be affirmed, with costs.
CUDDEBACK, HOGAN and CARDOZO, JJ., concur; WILLARD BARTLETT, Ch. J., HISCOCK and COLLIN, JJ., dissent.
Judgment affirmed. *306