Harvey v. Kennedy

80 N.Y.S. 878 | N.Y. App. Div. | 1903

Smith, J.:

In Morris v. Sickly (133 N. Y. 456) the head note reads: “ While circumstances surrounding the testator at the time of making a will may, where the language of the will is of doubtful import, be proved for the purpose of arriving at the testator’s intent, the intent then existing when ascertained must have effect, and may not be varied by after-occurring events, and so, circumstances occurring after the execution of the will, and which could not have been within the contemplation of the testator at that time, may not be availed of as showing a different intent.

, “ The will of Gr., after providing for the payment of debts, etc., gave two legacies amounting to $2,000; one of $1,800. to plaintiff, her sister, in .whose family she resided; her residuary estate she gave to beneficiaries named. At the time the. will was made GL owned no real estate, but had personal property of the value of about $2,500. A year after she purchased of plaintiff and her husband certain real estate for which she paid $2,000, and, thereafter and at the time of her death, her personal property amounted to but about $500. Held, that plaintiff’s legacy was not chargeable upon the real estate.”

This case seems determinative of the cáse at bar. The will in the case at bar was executed March 1, 1898. It provides for only $2,500 of legacies. At the time of the making of the will the testatrix owned personal property worth about $15,000, including a mortgage upon which was due upwards of $10,000. Her debts at the most could not exceed $5,000. She had at that time real property of the value of $7,000. There is no question, therefore, that at the time of the making of the will her personal property was abundant to pay the legacies and leave á large surplus for the residuum. Such circumstances would seem to negative any intention to charge the real estate with the payment of the legacies, and as the intent to charge must exist at the time of the making of the will, the plaintiff’s position would seem to be untenable. The case cited seems also to hold that notwithstanding the personal property which was apparently relied upon to pay this legacy was converted into real property, nevertheless that could not change the rule of law which requires the legacies to be satisfied from the personal property. Nor could such fact relate back to the time, of the making of the will for the purpose of implying in the testatrix an intent that the legacies should be a charge upon that real .estate. It is contended that in the residuary clause is a power of sale which is superfluous unless for the purpose of satisfying the legacies. On the contrary, the sale of the real estate was directed for a specific purpose, to wit, for the creation of a fund which the trustee should hold for the benefit of the residuary legatee. It is claimed further that the blending of the real and personal property in the residuary clause had the effect to charge the legacies upon the real estate; but this blending is not significant where the main object of the téstatrix’s bounty was provided for by the residuary clause. (Bevan v. Cooper, 72 N. Y. 317.) We conclude, therefore, that this real estate cannot be resorted to for the payment of plaintiff’s legacy, and that the contention of the defendant must be sustained, with costs.

All concurred.

Judgment for defendants, with costs.