| N.Y. Sup. Ct. | Mar 15, 1892
The controversy in this case arises out of' the construction of the will of Franklin W. Farnam, deceased. By the fifth clause the testator gives to a religious corporation in the city of Troy $20,000 and certain real estate; and, the will having been executed within two months prior to his decease, it is conceded that this clause is void, under chapter 319 of the Laws of 1888. The matter to be determined is the interpretation to be given of the tenth clause of the will, which is as follows: “Tenth. All the rest and residue of my estate, remaining after the payment of all the legacies, devises, and bequests hereinbefore specified or contained, I give, devise, and bequeath to Farnam Philip Caird. In case he shall not be living at the time of my decease, then, and in such case, I give, devise, and bequeath the same to his mother, Carrie L. B. Caird.” The question submitted is, does the property attempted to be bequeathed and devised in the fifth clause of the will pass to the residuary legatee and devisee under said tentli clause, or, as held by the trial court, go to the heirs and next of kin ? The counsel for respondent insists, and I understand the trial court to have, in substance, held, that the tenth clause was not a general residuary, but a specific residuary, clause, (so to call it.) The principles applicable to general residuary bequests are well settled. In Riker v. Cornwell, 113 N. Y. 124, 20 N. E. Rep. 602; Cruikshank v. Home for the Friendless, 113 N.Y. 337" court="NY" date_filed="1889-04-16" href="https://app.midpage.ai/document/cruikshank-v--home-for-the-friendless-3621007?utm_source=webapp" opinion_id="3621007">113 N. Y. 337, 21 N. E. Rep. 64; In re Crossman, 113 N. Y. 510, 21 N. E. Rep. 180,—the court lays down this doctrine: “A general residuary clause includes in its gift any property or interest in the will which, for any reason, eventually falls into the general residue. It will include legacies which were originally void, either because the disposition was illegal, or because, for any other reason, it was impossible that it should take effect; and it includes such legacies as may lapse by events subsequent to the making of the will. It operates to transfer to the residuary legatee such portion of his property as the testator has not perfectly disposed of.” In Re Bonnet, 113 N. Y. 524, 21 N. E. Rep. 139, it is said: “We hold that, unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be carried by a genera] gift of the residuum of the testator’s estate.” In Re Benson, 96 N. Y. 510, the court quotes with approval the remark in Banks v. Phelan, 4 Barb. 80" court="N.Y. Sup. Ct." date_filed="1848-07-06" href="https://app.midpage.ai/document/banks-v-phelan-5457454?utm_source=webapp" opinion_id="5457454">4 Barb. 80, that the only exception to the general rule is where the “ words used in the will expressly show an intention on the part of the testator to exclude such portions of his estate as are mentioned in any of the previous clauses of the will from falling into the general residue. ” See, also, Floyd v. Carow, 88 N. Y. 566; Rogers v. Case, 18 Wkly. Dig. 470; King v. Strong, 9 Paige Ch., 94" court="None" date_filed="1841-04-06" href="https://app.midpage.ai/document/king-v-strong-5548558?utm_source=webapp" opinion_id="5548558">9 Paige, 94; 2 Redf. Wills, 115, note. In the tenth clause the testator gives and bequeaths all the rest and residue of his estate remaining after the payment of all the legacies, devises, and bequests hereinbefore specified or contained to Farnam Philip Caird. The language is that of a general residuary clause. The sentence therein, “after the payment of all the legacies, devises, and bequests herein-before specified or contained, ” does not prevent it from so being considered. In Riker v. Cornwell, supra, it was insisted that the words in the second clause of the second codicil, “after payment of all the legacies, and carrying out of the trusts and provisions made, ” were words of exclusion, and which indicated an intention .to give only a specific legacy. The court held there was no force in the suggestion. In Banks v. Phelan, 4 Barb. 89, the court remarked: “It was contended upon the argument that the words, ‘ if any there shall be, after paying the preceding legacies, devises, and bequests,’ contained in the parentheses of the residuary clause, bring this case within
The learned judge at special term in his opinion says: “ When we reach the tenth clause, the testator does not give ‘all the rest and residue of my estate ’ to Farnam Philip Caird, but he qualifies and circumscribes the residue by clear expression of unmistakable import, namely, ‘remaining after the payment of all the legacies, devises, and bequests hereinbefore specified or contained.’ Clearly, whatever residue it is is the residue remaining after the payment of all the legacies, not of those effectually given, but specified or contained in the will, whether valid or not; otherwise, why add the words of definition, description, or limitation? If these words are to be stricken out, the purpose of the testator in adding them is to be thwarted. ” I cannot answer this position of the court below better than by quoting an extract from the opinion of Judge Gray in the Riker Case: “The words upon which the appellants lay so much stress, as being words of exclusion and limitation, are used by the testator rather as words of a description of the general residue. They might have been omitted without prejudice to the intention. But their retention works no confusion of thought. That which is ‘remaining after carrying out all the trusts and provisions made by me in my will and codicil ’ is the fund, which is"only completely ascertained when the previous provisions have been effectuated. The very sense of the words implies the negation of the idea of a specific or fixed residue outside of the previous gifts in the will. If the • carrying out ’ of the provisions of the will and codicil is defeated to any extent, to that extent the residue of the fund is increased by the accretion of the void or lapsed gifts.” See pages 126, 127,113 N. Y., and page 605, 20 N. E. Rep. I think, then, that the above quotations show that the said tenth subdivision of the will, being in form a general residuary clause, is not prevented from being deemed such by the words, “after the payment of all the legacies, devises, and bequests hereinbefore specified or contained.” Is it affected as a general bequest because in the fifth, sixth, seventh, and eighth clauses of his will the testator has bequeathed certain legacies to be paid out of the “residue” of his estate? In King v. Woodhull, supra, (see page 80,) the testatrix willed the residue of the proceeds of her estate, if it did not exceed $1,000, to a missionary society, and the residue and remainder of her estate, after the payment of said $1,000 to said missionary society, if any there shall be, she bequeathed to the children of her niece. The legacy of the missionary society lapsed, and it was held that a residuary legatee took the money. That case, then, is an instance of a general residuary bequest, after a specific bequest out of the residue, held valid. It is undoubtedly the rule that a bequest of a residue will not ordinarily carry a lapsed legacy. Kerr v. Dougherty, 79 N. Y. 346; Beekman v. Bonsor, 23
Plaintiff claims that by the will in question, after the first four clauses, there are.successive residuary legacies, beginning with the words, “I give and bequeath out of and from the residue of my estate, after the payment of the legacies,” etc., thereinbefore specified, and ending with the tenth clause, in which the same language is used; and he infers that the will evinces a plain intent of the testator that the residuary legatees in each case, including said tenth clause, shall only take the residuum after paying prior legacies, and hence that the tenth clause is a specific residuary clause, and not a general one. The answer to this proposition is (what has been before stated) that neither the fifth, sixth, seventh, nor eighth clauses of the will contain residuary bequests. Each of said clauses wills or bequeaths special legacies of money or property. The word “residue” is used, but the testator might as well have used “ balance. ” He wills in each case a sum of money, if, after paying the former legacies, his estate is sufficient. Yeither the fifth, sixth, seventh, nor eighth clause wills a residue. A “residue” is a “remainder,” “ what is-left, ” “the rest. ” These clauses will a specific sum of money in each case, payable from the balance of the estate of the testator, and not a residue. Then comes the tenth clause in question, in which the testator wills not any specific sum of money or property, but all his estate, to the residuary legatee. He does not so bequeath the residue after paying the legacies specified in the fifth, sixth, seventh, and eighth clauses, but the residue after paying all the legacies, including the first four. Suppose the first three legacies in the will had lapsed, can there be any reasonable doubt but what the language of the tenth clause is sufficient, under the authorities above quoted, to carry such lapsed legacies to Farnam Philip Oaird? If the bequest contained in the tenth clause was in any way limited in its language, so as to evince any