Greer v. Belknap

63 How. Pr. 390 | N.Y. Sup. Ct. | 1882

Westbrook, J.

The facts in this case are undisputed and my conclusions will be briefly stated.

First. The devise to the acting treasurer of Temple Chapter Ho. 5, Boyal Arch Masons of the city of Albany, and that to the acting treasurer of Temple Commandery Ho. 2 of the Knights Templar of the city of Albany, are valid.

Second. The legacy to “ The Albany Orphan Asylum ” is a good bequest to “ The Society for the Belief of Orphans and Destitute Children in the city of Albany” (Lefevre agt. Lefevre, 59 N. Y., 434).

Third. The devises to “ The Albany Guardian Society and Home of the Friendless,” and to “ The House of Shelter in Albany,” are void.

The will was not “ made and executed at least two months before the death of the testator ” (2 R. S. [6th ed.], p. 440, sec. 6).

It ought to be said here that the institution called in the will “ The Albany Orphan Asylum ” was not formed under the act to which reference has just been made, and the clause of that act just cited does not affect it.

Fowrth. The difficult question which this case presents is, who takes the amount of the void bequests in the fifth or residuary clause of the will ? Does it go to the next of kin or to the two — Adaline Belknap and the Albany Orphan Asylum — authorized to take ?

The clause reads: “All the rest, residue and remainder of my estate is to be divided equally between my cousin Miss Adaline 0. Belknap, the Albany Guardian Society and Home of the Friendless, the Albany Orphan Asylum and the House of Shelter in Albany.”

The intention of the testator is manifest. The residue of his property was to be “ divided equally ” between four persons, and that is equivalent to an express declaration that each should have one-quarter. The devise to two being adjudged void, if these devises go to the other two, each would get one-half of .the residuary instead of one-quarter, which would be contrary to the will (Bagnell agt. Day, 1 Peere Williams R., 700; Floyd agt. Barker, 1 Paige, 480; Beekman agt. Bonsor, 23 N. Y., 298, see page 312; Betts agt. Betts, 4 Abb. N. C., 317, see pages 420, 421, 422, 423, 424).

The case of Chamberlain agt. Chamberlain (43 N. Y., 424, see note at bottom of page 447) would seem to conflict with this view. This is explained, however, in Betts agt. Betts (above cited, see pages 423, 424), and to that explanation reference is made.

That part of the residuary estate which would have gone to the two institutions, “ The Albany Guardian Society and Home of the Friendless” and “The House of Shelter in Albany,” had the devises been held valid, must be treated as property undisposed of by the will and must go to the next of kin.

Findings and a decision in conformity with these views will be prepared by the plaintiff’s attorney.