71 N.J. Eq. 157 | New York Court of Chancery | 1906
The complainants, as executors of the last will of Alfred W. Martin, seek directions to aid them in the administration of the
“I wish my executors to make a settlement with my creditors of what debts I have outstanding- at the time I made an assignment, I think in 1872. Although not under obligations to pay these claims, yet I wish them paid. My executors must make a settlement of the principal, without interest, and I also wish those who have received their dividend to be paid less the dividend they received, as well as those creditors who did not hand in their claims. A list of all debts that I wish paid will be found enclosed with this will.”
The direction is to pay all his debts outstanding in 1872, without naming the persons to whom payment is to be made, and to ascertain who are embraced in that class he refers his representatives to "a list of all debts I wish■ paid ” to be found enclosed with his will. The will was executed in duplicate. One of them he gave to his executor, together with a list containing not only the names of some of his creditors in 1872, who had presented tlieir claims to his assignee, and of those who had not, but also a list of creditors to whom he was liable for subsequent debts. The names of the creditors and the amounts due are each set out with particularity. The other will the testator retained, and it was found in a box where he kept his valuable papers, and with it a partial list of his creditors at the date of the assignment and the amounts due each. This list does not correspond as to amounts, with the list held by his executor, for in some cases they are reduced, as appears from an inspection of the paper, to the extent of payments made by the testator after the execution of his will. It was shown on the trial that neither list contained the names of all the creditors mentioned in the schedule attached to the deed of assignment, nor of all the creditors who had proved and filed their claims. Under this state of facts such of the creditors as were omitted by the testator from the list he made out claim that under the terms, of the will they are to be considered in the class to be paid, and that the general direction to pay is not to be modified by the list left by the testator, according to which he expressed his intention
It is insisted, however, by the other legatees, that the whole bequest is void, because the persons who were to take are not named individually, but as a class, and in order to ascertain who constitute the class reference must be made to a paper not executed according to the law of wills. It is clear that this case differs from one where legacies are given subject to deductions for advancements, to be ascertained from charges in a book of account, or other evidence thereof to which the testator may refer, for in such case the testamentary disposition is complete and needs no aid from other sources, although subject to debts or advancements, for they may be proved without reference to any memoranda. The gift is complete; its payment during the life of the testator, in whole or in part, may be shown in exoneration of it, and therefore, in determining the question under consideration, we arc afforded no assistance by Moore's Case, 61 N. J. Eq. (16 Dick.) 616, for there the disposition was testamentary, subject to advancements which the. testator restricted to the amount he considered he had advanced.
My conclusion on this branch of the case is that the bequest to tire creditors of the testator now under consideration is void, because it is an attempt to bequeath property to a class of persons who can only be ascertained by reference to a non-testamentary paper, which the testator might change from day to day, and thus enlarge or diminish his testamentary gifts as often as he chose without observing the rules of law relating to the testamentary disposition of property.. The effect, if it should be permitted, would be to allow a testator to declare the particular legatees to whom his estate should go without the formality required by law in such cases.
The second question argued was whether these debts should be paid in full or abate with the other legacies, the estate being insufficient to pay in full. As I have decided that the gift in
The fourth question is not unlike the one last disposed of. Tn the will $200 is given to each of the children of Isaac Laing, and in Hie codicil the following appears: “I also give and bequeath to the children of Isaac Laing, if any are living, the sum of $200 each.” In the codicil a number of legacies of $200 c-ach, given to legatees who had died between the publication of the will and the codicil, were revoked, because, as the testator states, “'it would be to small an amount to- divide among their heirs,” and by the same codicil he bequeaths a like sum to other legatees named in the will. I therefore think that the same presumption applies to the bequest in the codicil to the children of Isaac Laing as I have found in the case of David Martin, and that the bequest in the codicil to them was intended by the testator to be a gift in addition to that contained in the will.