1 Johns. Ch. 494 | New York Court of Chancery | 1815
This suit was brought for the purpose of obtaining the direction of the court as to the distribution of the proceeds of the lands ordered to be sold by the executors. •
This lot having been sold by the executor, and the nett amount, to 2,000 dollars, placed at interest, according to the directions of the will, it is admitted that the legatees are entitled to the interest, to be paid annually ; and the great point is, whether the principal sum is, also, to be distributed among those legatees, under the will, which directs “ the moneys arising from the sale to be put at interest, on good security, and the interest thereof to be annually paid, in the proportions above mentioned, to the above legatees, and the survivors of them.” The will is silent as to any further disposition of those proceeds ; and yet I am persuaded, from a consideration of the whole will, that the testatrix did not intend to die intestate as to those proceeds. In the introductory part of the will, she says, 66 my worldly substance l do dispose of,\ as followsand, afterwards, she uses these words, “ whereas it hath pleased Almighty God to bless some of my connexions with affluence, insomuch that a share in the property I may le&ve at my death would not add to their comfort, I have, therefore, concluded to distribute my substance among such of my relations as, in my judgment, stand most in need of if,” &c. And, in the devise of the proceeds of the two lots, she gives the nett proceeds of the former lot, out and out, to the same legatees; and she makes no disposition over of the residuum oí’ her real estate; for the last clauc-e in the will declaring, that “if any thing be remaining of her personal estate, after paying off the mortgage,” &c. 66 she gave it to her step-daughter, Sarah Jaunceyf alluded only to the personal estate that she left, and not to those houses and lots ; and the clause is, 'also, to he taken in connexion with one in the former pari of the will, directing her executors to sell her furniture, plate, &c, and to apply the proceeds to the discharge of a mortgage on the Pine-street lot. It was the surplus of those
The introductory part of a will is admitted to have some effect in the construction of the subsequent devises. Lord Talbot, in Ibbetson v. Beckwith, (Cases temp. Talbot, 157.,) said, that the introduction served to “ show that the testator had his whole estate in view; and if the will be general, and taking his words in one sense will make the will to be a complete disposition of the whole, whereas the taking them in another sense will make a chasm, they shall be taken in that sense which is most likely to be agreeable to his intent of disposing of his whole estate.” But the intention, manifested in the introductory part, is not, alone, sufficient, without an actual devise. It must appear that the testator not only did not intend to die, but that he did not, in fact, die intestate. If, however, it be apparent from the introductory part, that the testator meant to dispose of the whole of his property, and the expressions in the residuary clause may include the whole, they are to be taken in the largest sense, in order to correspond with the introductory part. This was the rule adopted by Mr. Justice Buller, in Smith v. Coffin, (2 H. Black. 444.)
The interest of the proceeds of the sale of the Beekmanstreet lot, is here given to the six legatees, and the survivors of them, without limitation of time. It is an absolute bequest as to the interest / and is the money, then, to be always kept at interest, so that the legatees, and their representatives, may enjoy this interest for ever ? There is no sufficient reason why this bequest should be limited to the life of each legatee. The better construction is, that this was a bequest, not in joint tenancy, but in common; for the interest Is given to them “ in the proportions above mentioned,” i. e.
Decree accordingly.