Cornell v. Van Wormer

119 N.Y.S. 293 | N.Y. App. Div. | 1909

Chester, J.:

The devise in the 5th clause of the will of the house and lot which is the subject of this action appears to be separate and distinct from the bequests of the personal property thereafter given in such clause except as these two are joined by the conjunction “ and.” The devise of the real estate is of an absolute estate in fee. Then follow the words “ and, also all moneys that I may have in Banks or loaned out on notes or otherwise at the time of my decease to be hers and her heirs and assigns forever, except the sum of two thousand five hundred dollars ($2,500) or so much thereof or as much more as may be necessary to pay all my funeral expenses, debts, expenses of administration of my estate and erecting the monuments and markers and provide for the perpetual care of my cemetery lot, as hereinbefore provided.”

I think the testator intended by this language to subject the money lie had in bank and the moneys due him on notes or otherwise to the payment of the matters mentioned after the word “ except ” and to give his wife the surplus, if any remaining, and that he did not intend to charge these matters upon the dwelling house and lot or upon the household furniture, watches, jewelry, personal belongings and library which he had by the 1st clause of the item given to her. In construing the will and in finding the intent of the testator we must take the situation as it existed when the will was made. If the debts and funeral expenses are to be charged upon the house as well as upon the moneys in bank and the moneys loaned out on notes, it is apparent from the amount of the debts that the entire value of the house will be required. It would hardly seem probable that the testator would go through the form of making a devise of his dwelling house to his wife absolutely, and in the same item of the will charge it with the payment of debts sufficient in amount to take it away from her, especially where he had a large personal estate invested in the stock of the companies in which he was interested. This construction appears to be in harmony with the testator’s intention as expressed in the 9th clause of the will where he says the object of this will “ is to amply provide for the comfortable maintenance of my wife during her lifetime.” It cannot be that he supposed that a comfortable maintenance for his wife could be promoted by having the dwelling house which he had given her taken for the payment of his debts and she left without a home when he had ample personal estate to pay all his debts and the other charges mentioned. It is urged, however, that in the 9th clause referred to the testator also stated that the object of his will was to distribute the residue of his estate in such manner as not to incumber, injure or any way interfere with the Sandy Hill Iron and Brass Works or the management or business thereof. In his will he had provided for the distribution of the stock of these works among various beneficiaries and had expressed a desire that if it could be satisfactorily arranged by the executors with the legatees the shares of stock of these works should be held by them in trust for a period of five years after the death of his wife, paying the income during that time to the several legatees in proportion to the number of shares bequeathed to them.

I am unable to see how the payment of the portion of the debts and other charges remaining after applying the moneys in bank and the moneys due on notes, out of his other personal estate, including these shares could materially interfere with the management or business of these works. It would simply take from the legatees of these shares a very small proportion of their legacies and would not in any manner interfere with the business. I think the intention is clear from the will and the surrounding circumstances that the testator desired his debts, funeral expenses, expenses of administration and the amount required to provide the monuments and care of cemetery lot to be taken out of his moneys in bank and out of the amounts due him upon notes, and if these were not sufficient that the ordinary rule of law should apply and the debts and expenses remaining should be paid out of his other personal property.

The interlocutory judgment should be affirmed, with costs.

Interlocutory judgment unanimously affirmed, with costs.