1 Bradf. 300 | N.Y. Sur. Ct. | 1850
The testator having left a large residue of his personal estate undisposed of by his will, it becomes necessary on the final accounting of-the executor,
Our act contains substantially the same provisions as those of 22 <& 23 Oa/r., H., o. 10 ; 29 Oar., H., c. 3, § 25, and 1 Tac., 11, c. 17, § 7, and the construction I have given to the restriction upon representation among collaterals accords with the current of the decisions. (Williams on Executors, 1299; Toller, 383.) The policy of the Statute of Distributions is generally, after providing for the widow, children, father, and mother, to give the estate to the next of kin in equal degree. Where the claimants are of unequal degree, the nearest of kin must take the whole, unless the remote class can come in by representation, which, as I have seen, is prohibited by the statute as to collaterals, except in the solitary case of brothers’ and sisters’ children. (Hallett vs. Hare, 5 Paige, 316.) There is nothing in the 9th and 10th subdivisions of the 79th section, which conflicts with this view; their object is not to declare who shall be entitled to distributive shares, but what the shares shall be in all cases of equality or inequality of degree of kindred.
It follows that the surplus remaining in the hands of the executor, as to which the deceased died intestate, must be distributed, after paying a moiety and two thousand dollars besides to the widow, among the nephews and nieces of the testator who were living at his decease, and the representatives of such of them as have since died.' The children of nephews and nieces who died before the testator, take nothing.
In the codicil to his will, the testator directed as fol
After the execution of the codicil, the Methodist Society, of which the testator was a member, sold their church and property to the Emanuel Congregation, taking a bond and mortgage of $6000, for consideration money, which were assigned to the testator by the Methodist Society, who thereupon received back their bond. The bond and mortgage of the Emanuel Congregation, taken in lieu of the other, remained uncollected among the assets of the testator at the time of his death. The question is, whether the legacy is general or specific, and if the latter, whether it has failed by ademption.
It is no easy task to settle the boundary line of specific and general legacies, so nice are the distinctions upon which many of the cases have turned, while the opinions of the most eminent judges have been found in conflict upon important points, material to the consistency and har
Where the testator gave f/oe hundred pounds wlvich Lad/y O. owed him by bond (Pawlet's Case, Raym., 335); or one thousa/nd pounds out of certain lands (Saville vs. Blacket, 1 P. Wms., 718); or directed his mortgages, bonds, and notes, stating the amount, to be vested in trustees (Attorney General vs. Parkin., Amb., 566); or where he gave a thousand pounds out of the produce of a certain estate he had contracted to buy (Fowler vs. Willoughby, 2 Sim. (& Stu., 354); or fou/rteen hundred pounds for which he
TJpon the whole, I think I should be justified upon the authority of Smith vs. Fitzgerald, and Le Grice vs. Finch, in holding these legacies general. But there seems to me to be other and sufficient ground to support the claim of the legatees. Whether a legacy was adeemed or not, de
The testator, after devising to his wife some real estate in fee, and bequeathing to her his household furniture, then gave her also a life estate in his dwelling-house, together with “ the clear income” of all his real estate, except certain lands in Broome county. In a codicil, he made certain bequests as follows:
1. “ I give and bequeath to Samuel S. Doughty (the executor), the bond and mortgage, made and executed by. Edward Doughty, &c., to hold the same in trust in equal proportions, for Gertrude Eliza, the wife of Richard R. Ward, and Gertrude Ray Ward, her daughter, the interest of the said amount to be paid by him, to the said Gertrude Eliza Ward and Gertrude Ray Ward, in equal proportionsj from and after the time of the decease of m/y wife ETÁzar beth.”
2. “ Item, it is my will that the bond which I hold from the trustees of the Methodist Society, &c., remain uncollected for three years after the time of the decease of my wife Elizabeth, when the said amount shall be collected and divided, and I do give and bequeath the same as follows, viz.: one thousand dollars thereof to the Methodist Society aforesaid, one thousand dollars thereof to the Rev. William S. Stillwell, &c., &c., &c., and it is my will that the income thereof, shall, from a/nd after the time of the decease of my wife Elizabeth, be divided in like proportions among the said legatees, and paid to them half-yearly.”
3. “ Item, I give and bequeath to Richard E., the son of the Rev. William M. Stillwell, the sum of one thousand dollars, to be paid to him at the time of the decease of my wife Elizabeth, out of the money secured to be paid to me by the bonds of Samuel S. Doughty; and I do give and bequeath to the said Samuel S. Doughty, all the residue of the amount secured to be paid to me by the said bonds ; and it is my will, that on the payment to the said Richard
The question raised on these clauses of the codicil, relates to the disposition of the interest on the several legacies, which may accrue previous to the decease of the testator’s wife, the widow claiming that out of the words “ at” or “ after the decease of m/y wife Elizabeth,” arises a life estate, by way of implication, in her favor.
In regard to real estate, a devise to the testator’s heir after the death of A,, confers on A. an estate for life by implication, but a devise to B., a stranger, after the death of A., does not confer an estate on A. by implication. The reason is, that in the first case the testator cannot be supposed to give an estate to his heir after a certain time, and yet mean the heir to have it in the mean time; in the latter case, though the devisee is not to take the estate until the decease of A., yet it is possible the testator meant his heir to have it during the life of A., during which period he left it undisposed of. (1 Jarman, 466.)
The same principles seem applicable to bequests of personal estate. (1 Jarman, 478.) It is true there are decisions apparently conflicting on this point, but I think they can be reconciled as all falling within the doctrine, that a bequest to one of the next of kin, who in case of intestacy would be entitled to a share of the thing bequeathed, after the death of A., gives a life-estate to A. by implication, upon the ground above stated in regard to real estate. In Bendale vs. Summerset, 5 Burr., 2608, the legacy was to one daughter on the death of another In Bird vs. Hunsdon, 2 Swan., 342, it was on the death of M., to “ brothers’ and sisters’ children,” and there was a previous bequest to M., so long as she continued single; in Blaclmell vs. Bull, 1 Keen, 176, it was to the testator’s children on the decease of his wife; in Cockshott vs. Cockshott, 2 Coll. C. C, it wasr" to the testator’s sons and daughters after the death of his wife, “ or so long as she continued” his widow; but there is no case that I find where such an implication is raised
In regard to the legacy to Richard E. Stillwell, the case is clear, without reference to the grounds I have discussed. That is a simple bequest to him of $1000, to be paid to him at the decease of the testator’s wife. It is a vested legacy, payable at a future time. The clause shows, however, how unwise it would be to deduce from the event upon which the testator has made the legacy payable, an inference that he designed the fund for her benefit before her decease, for he goes on to direct out of what fund the legacy shall be paid, namely, the bonds of Samuel S. Doughty; and then, in the next breath, gives to Samuel S. Doughty all the residue of the amount 'secured to be
The decree must provide, then, for the income of the two legacies first mentioned to be distributed to the widow and next of kin, during the life of the widow, and for the payment to the parties in interest after her death, as specified in the will.