6 N.Y.S. 186 | N.Y. Sup. Ct. | 1889
This is an appeal from a final decree of the surrogate’s court upon a settlement of the account of the executors of Hoah S. Hunt, deceased. In order to make the decree, it was necessary for the surrogate to determine what persons were entitled to share in the residuary estate of the testator under the twelfth clause of the will. He construed that clause in such a way as to exclude the children of the testator’s deceased niece, Mary Jane Gray, from any participation in the distribution of the residuum, and the only question to be dgtermined on this appeal is whether such construction is correct. Under the will the principal recipients of the testator’s bounty are various nephews and nieces. One nephew receives an absolute legacy of $7,000, (fourth clause;) three nieces receive absolute legacies of $7,000 each, (fifth clause;) one nephew receives a life-estate in $5,000, (seventh clause;) another, a life-estate in $2,000, (ninth clause;) and a niece a life-estate in $2,000, (eighth clause.) By the second clause of the will the sum of $20,000 is bequeathed to one nephew, and the sum of $80,000 in equal shares to three nephews and two nieces of the testator, subject to certain life-interests in favor of the testator’s sister Sarah and her husband. By the third clause-the sum of $7,000 apiece is bequeathed to two other nephews and two other nieces, subject, likewise, to a certain life-interest in behalf of the testator’s sister Mary. By the sixth clause the testator bequeaths to four other nephews the sum of $5,000 each, subject to a life-interest in favor of his sister Harriet. The tenth clause is similar in its general form to the second, third, and sixth clauses, and is the first one in which the appellants Alice, Thomas, and Frederick Gray are mentioned. The portion material to be considered on this appeal is in the following words: “I give and bequeath unto Alice, Thomas, and Frederick, the three children of my deceased niece, Mary Jane Gray, late wife of the Rev. Thomas M. Gray, each the sum of $2,000: provided, always, nevertheless, and it is my will, that if my sister Jane Hoe shall survive me, then, and in that case, at least one-half part, and more if she shall need or require it, of the interest or income of the legacies hereinbefore given to her said grandchildren, Alice, Thomas, and Frederick Gray, shall be paid by my executors, their survivors or survivor, to my sister Jane, or be applied to her use during the residue of the term of her natural life; and that the residue, if any, such interest or income of such legacies, respectively, to be paid to the said children of my deceased niece, Mary Jane Gray, to whom the principal thereof is hereinbefore given.” That part of the twelfth clause which we are called upon to construe is in the following words: “All the rest, residue, and remainder of my estates and property of every name, nature, and description, including the principal sums to be invested for the payment of interest or income thereof, unto my nephews James H. Cory and Samuel H. Clark, and my niece Sarah Jane Bradford, as they shall severally, by the death of either of them, fall into my said residuary estate, I do give and devise and bequeath unto my nephews and nieces hereinbefore named, except the said James H. Cory, Samuel H. Clark, and Sarah Jane Bradford, in such proportionate shares as the legacies hereinbefore given and bequeathed to them, respectively, shall bear to each other.” The question presented for decision is whether the devise and bequest “ unto my nephews and nieces hereinbefore named” includes Alice Gray, the grand-niece of the testator, and Thomas and Frederick, grand-nephews, who are named in the tenth clause of the will, and therein described as “the three children of my deceased niece, Mary Jane Gray, late wife of the Rev. Thomas H. Gray.”
The contention of the learned counsel for the appellants, in substance, is that from the whole scheme of the will it is apparent that the testator regarded