189 A.D. 319 | N.Y. App. Div. | 1919
This appeal presents a rehearing pursuant to our judgment in 187 Appellate Division, 938. The appellant now confines her contention to propositions thus stated by her: that the legacies of the will were payable out of the proceeds of the property and were specific to that extent; that they were all of like character, contributed among themselves, and that all abate ratably.
After the usual provision for debts and for personal expenses and the bequest of personal chattels, the testator provided: “ Eighth. I give and bequeath to my husband Eugene Schulz, the sum of Eighteen Thousand ($18,000.00) Dollars. Ninth. I give and bequeath unto my grand Niece Louisa Ambs the sum of One Thousand ($1,000.00) Dollars. Tenth. I give
Upon this trial it is established that the testator left only $366 in personalty, and that this was the amount of such property at the time of the execution of the will. The estimated market value of the real estate was about $71,000 subject to mortgages of about $50,000. The learned surrogate has decreed that legacies provided in the 8th, 9th and 10th clauses of the will must be charged upon the entire estate, but did not consider the legacies provided for in the 12th clause for the express reason that the question remitted by this court did not embrace them.
The first contention of the appellant, then, is not against the determination of the surrogate, but would extend it to the legacies of the 12th clause. The executor sought instruction as to all of the legacies in the will, and I think this court has power to pass upon this question. (Robinson v. Raynor, 28 N. Y. 494; Matter of Rogers, 10 App. Div. 593; Code Civ. Proc. § 2763.) I am of opinion that the contention should prevail for the same reasons that apply to the legacies in the 8th, 9th and 10th clauses. The total inadequacy of personalty of $366 at the time of the execution of the will indicates that unless the testator sought to mock at her relatives, she must have intended that the legacies specified by her to the amount
I do not yield to the further contention of the appellant. In concrete form it is that the legacies provided in the 8th, 9th and 10th clauses must abate equally with the legacies provided in the 12th clause. The scheme of the will provides for the legacies of the 8th, 9th and 10th clauses out of the estate intact. But thereafter the scheme but regards “ my remaining Estate ” first to be charged with the fife estate, and then, upon the termination thereof, the “ remainder of my Estate,” which is to be “ divided ” into the legacies which are specified in the 12th clause and its said subdivisions. Remainder means that which is left after some separation or subtraction. I think the word “ remainder ” was used, not in the strict legal sense of the term, but to describe that which was left after something had been taken from the estate. As to like use and construction of the word, or a word equipollent, see McCorn v. McCorn (100 N. Y. 511, 514); Chase v. Cartright (53 Ark. 365); Hubbard v. Hubbard (6 Met. 50); Hoyt v. Hoyt (85 N. Y. 150, 151); United States Trust Co. v. Black (146 id. 10, 11). If the legacies in the 12th clause are to be charged like unto those in the 8th, 9th and 10th clauses, then the latter are not charged upon the remaining estate but upon the estate. If the legacies in the 12th clause are in the same category as those in the 8th, 9th and 10th clauses, then they are to be charged, not upon the estate, but upon the remaining estate. Either construction does violence to the plain language of the will. Further, the expression “ remaining Estate ” is meaningless unless there be some deduction, and yet there is no deduction unless it be the legacies of the 8th, 9th and 10th clauses. The legacies are of two classes; those in the 8th, 9th and 10th clauses are a charge upon the estate and those in the 12th clause upon the remainder or residue of the estate. Wherefore there is no abatement common to both classes of legacies. (Roper Legacies, chap. VII, § 1, *428, *429, et seq. See, too, 1 Am. & Eng. Ency. of Law [2d ed.], 42; Matter of Title Guarantee & Trust Co., 195 N. Y. 339; Thompson v. Thompson, 3 Dem. 409; Langstroth v. Golding, 41 N. J. Eq. 53; Hubbard v. Hubbard, supra, 63.) To my
The cases mainly relied upon by the learned counsel for the appellant may be discriminated in that the legacies in each case were chargeable upon the same estate or fund. Thus in Van Nest v. Van Nest (43 N. J. Eq. 126) the direction was that, of $1,300, T. should have $500 and the remaining $800 to be equally divided among others; that is, all were to be paid out of the same fund — $1,300, and so all abated. The decision in Van Nest’s case turns upon Page v. Leapingwell (18 Ves. 463) — also largely relied upon by the appellant. In Page v. Leapingwell the legacies of £7,800 and the overplus both were charged upon the estimated fund of £10,000. In Elwes v. Causton (30 Beav. 554) the charges were all upon £3 per cent bank annuities. In McCorn v. McCorn (supra) the testator bequeathed $1,000 to his wife and to his son Moses $400, and the rest of the property was divided equally between certain persons, and the court but- held that the widow was not entitled to full payment to the exclusion of the son.
The decree is amended in accord with this opinion, and as amended is affirmed, without costs of this appeal.
i
Minns, Rich, Kelly and Jay cox, JJ., concurred.
Decree of the Surrogate’s Court of Kings county amended in accord with opinion, and as amended affirmed, without costs of this appeal.
