157 N.Y.S. 679 | N.Y. Sur. Ct. | 1916
This is an application by the executors of the estate of Hellie M. Hoe, deceased, under section 2615, Code of Civil Procedure, for a construction of her will. The particular reason which the executors allege in justification of their application is that it is impossible for them to pay any of the general legacies given by the will until it is determined whether such legacies are a charge upon the real estate. Under these circumstances I will entertain the application and construe the will.
The value of the personal property owned by the testatrix at the date of the execution-of her will was $20,249 and the real estate $230,000. The total value of the cash legacies bequeathed by her was $97,000.- At the date of her death the value of her personal property was about $29,050 and of her real estate $100,000.
The difference between the value of the personal property owned by the testatrix at the time she executed the will and the value of the pecuniary legacies bequeathed by her was so great as to render reasonably certain the conclusion that she knew at the time of the execution of -her will that her- personal property was insufficient to pay the pecuniary bequests which she had made. She had no- immediate relatives who would- be the natural objects of her bounty; there was- no one dependent upon her whom she would be under an obligation to support. Her legatees were personal friends, charitable -or religious corporations and persons remotely related- to her. There would therefore be no controlling reason for the discrimination in favor of
The decisions bearing on the question now under consideration were so exhaustively considered by Justice Clarke in Ely v. Ely (163 App. Div. 320), that it is unnecessary for me to' discuss those decisions or to state the principles which have been settled by them; but it seems to me that the application -of those principles, to the matter under consideration necessarily, results in a determination that it was the intention of the testatrix that the general legacies should, in so far as necessary, be paid out of the proceeds realized from the sale of the real estate of which the testatrix died seized. (Briggs v. Carroll, 117 N. Y. 288 ; Hogan v. Kavanaugh, 138 id. 417 ; McManus v. McManus, 179 id. 338.) A decree may be entered upon notice construing the will in accordance with this decision.
Decreed accordingly.