20 N.Y.S. 60 | N.Y. Sur. Ct. | 1891
The testator sent for the subscribing witnesses to come to his house in the night, to witness the execution of his will. It had been previously drawn, and he personally supervised its execution. He was explicit in his declaration that it was his will, and in his request to them to subscribe it as witnesses. One of the witnesses is explicit in testifying testator signed the will in their presence, while the other has no definite recollection, but an
The will was as follows: “First. I gave and bequeath to the heirs of my daughter Mariah Theresa Eddy now diseased the sum of five hundred (500) dollars shair and shair alike. Second. That after paying all my debts after my death it is my will and direction that the ballance and remainder of all my property, booth real and personal, shal be expended in the building and erecting a monument at the head of my grave togather with sutible fense and fixtures.”
The construction of the second clause of the will is put in issue by the objections filed. The counsel for the contestants, in a very elaborate brief, argue with much ingenuity that there is no ascertained beneficiary, and hence that the will is void for uncertainty, and cites a number of authorities, of which Holland v. Alcock, 108 N. Y. 812, 16 N. E. Rep. 305, and Read v. Williams, 125 N. Y. 560, 26 N. E. Rep. 730, are samples. I do not think those cases are applicable. Had the testator directed in plain, unequivocal terms that his executors expend a reasonable sum in the purchase of a monument to be erected at his grave, no one would have questioned the validity of the direction. The erection of a monument is one of the incidents to the administration of an estate of a decedent, of the same class as funeral expenses. Wood v. Vandenburgh, 6 Paige, 277-285. And such a provision is one that a testator has the right to make, even to the extent of all of his property. Pfaler v. Raberg, 3 Dem. Sur. 360; In re Frazer, 92 N. Y. 239-249; Emans v. Hickman, 12 Hun, 425. But a fair interpretation of this clause is no more than a direction to his executors to set apart a reasonable portion of his estate for the purposes stated. He was a farmer who had acquired a small competence by dint of the frugality and self-denial which the life of a small farmer implies. He had reared a large family, who had remained with him until they severally attained majority. He lived at a distance even from a small village, and a man of his stamp would hardly desire that the entire savings of his provident life should be devoted to the erection of a tombstone in a country graveyard, soon to be covered over with the weeds and vines which are the usual adornments of such a place. He provided for a suitable fence and fixtures, and evidently had in mind a corresponding fitness in the purchase of his monument. But he preferred to trust to the wisdom of his executors in making this outlay than to his children, who had left home and become scattered In Emans v. Hickman, 12 Hun, 425, supra, a similar direction was construed to mean an expenditure suitable to hisstatior in life. While a literal interpretation of the language employed would seeiz