In re of Carter

| N.Y. App. Div. | Nov 15, 1928

Decree modified so as to provide that testatrix therein named did bequeath unto Mary Powley, wife of J. H. Powley of 1315 Third avenue, Detroit, Mich., the use for and during the natural life of said Mary Powley, and the income and dividends during her life upon forty shares in the preferred capital stock of the Niagara Falls Power Company, a corporation of New York, of the par value of twenty-five dollars per share; that said Catherine Martin, deceased, bequeathed said forty shares in the preferred capital stock of said The Niagara Falls Power Company of the par value of twenty-five dollars per share, to the said The Niagara Falls Memorial Hospital in absolute ownership from, upon and after the death of said Mary Powley, to whom it was bequeathed for life; that said legacies so made to said Mary Powley and said The Niagara Falls Memorial Hospital are specific and not general, and are not subject to abatement with other general legacies in the event that the estate of said deceased Is not sufficient in amount to pay all of the general legacies in full; that in and by her said will the said Catherine Martin, deceased, bequeathed to the Salvation Army of Niagara Falls, N. Y., respondent herein, all of the personal belongings of said deceased consisting of wearing apparel, jewelry and personal effects, not otherwise in said will disposed of, and by a general legacy also bequeathed to the said Salvation Army of Niagara Falls, N. Y., in absolute ownership, all the other power company stock owned by her at the time of her death, same consisting of 120 shares in the preferred capital stock of the Niagara Falls Power Company aforesaid. And as so modified, the decree is affirmed, with costs to each party filing a brief, payable out of the estate. All concur, except Sears, J., who dissents and votes for modification as to the classification of legacies only, being of the opinion that the legacies to Mary Powley and the Niagara Falls Memorial Hospital related to Niagara Falls Power stock having a par value of four thousand dollars and that, therefore, 160 shares of the par value of twenty-five dollars are included in the provisions for such legatees. Present — Hubbs, P. J., Sears, Crouch, Taylor and Sawyer, JJ.