127 A.D. 21 | N.Y. App. Div. | 1908
This is an appeal from an order of the Surrogate’s Court denying the application of H. B. Maccafil to vacate or to modify letters testamentaz'y issued to Kiikham under the will of Charlotte M. Maccafil and denying the application of the said H. B. Maccafil for lettei’s of adzninistration upon the estate of the said Chazdotte M. Maccafil. Charlotte M. Maccafil died leaving her surviving the said.H. B. Maccafil, her husband, and no descendants. Her will is as follows: “ I, .Chazdotte M. Maccafil, of Kitchawan, in the County of Westchester and State of Bew Yozdc, do make, publish and declare the-following as my Last Will and Testament, viz.: I give and devise all my real estate, consisting of Bos. 157 and 159 East Thirty-second street, and Bos. 156 and 158 East Thirty-third street, in the city of Bew Yoz'k, to my bznthez’-in-law, Wilbur Harrison Kiz’kham, to be held azid enjoyed by him during the term of his natural life. After the death of my said brother-in-law, or at the sooner terznination of his life estate in said premises, 1 give and devise the same to my nephew, Wilbiir Haynes Kirkham, the'son of the said Wilbur Harzlson Kirkham, to be held and enjoyed by him during the term of his natural life, and after his death I give and devise the same to his lawful issue, and to their heiz’s absolutely in equal portions per stirpes. ■ In case my said nephew shall die leaving no issue, nor descendants of issue, him surviving, I give and devise the said premises absolutely and in fee to ‘ St. Mary’s Free Hospital for Children,’ at present located at Bos. 405 to 411 West Tlzirtyfourth street, in the city of Béw York. I appoint my said brothez*in-law, Wilbur Harrison Kirkham, executor of this, my Last Will and Testament,' and I direct that in case he, at my decease^ shall be, or becozne a non-resident of the State of Bew York, he shall be * allowed to act as such executor without giving bonds. I hereby
The contention of the appellant is that the woman died intestate as to all her personal property without descendants, and so the personalty upon her death vested absolutely in the husband, who,: therefore, has the sole right to letters of administration thereupon.
But I am of opinion that the will was entitled to probate as a will of personal property. Red'field on the Law of Wills (Vol. 3 [3d ed.], *56) says : “ It is well settled that a will appointing an executor, and containing no disposition of personalty is entitled to probate, whether it contain any disposition of real estate or not.” Theobald o'n the Law of Wills (5th ed. p. 71) says : “ A will disposing of realty only was entitled to probate if the testator appointed an executor,” citing cases. And the same writer also says: “The will of a married woman disposing only of real estate belonging to her for her .separate use and appointing an executor was, even before the Married Women’s Property Act, 1882, entitled to probate,” citing cases. Williams on Executors (Am. Notes, Rand. & Tal., vol. 1, p. 268) says: “ The bare nomination of an executor, without giving any legacy or appointing anything to be done by him, is sufficient to make it a will, and as a will it is to be proved.” After citing cases the author’s note reads: “ This seems to be so even though the will deals only with realty: In the Goods of Jordan, L. R. 1 P. & D. 555. * * * But the will of a married woman dealing only with realty, but appointing executors, is entitled to probate where a portion of the estate consists of personalty vested in her by virtue of the Married Women’s Property Act, 1882: In the Goods of Cubbon, 11 P. D. 169. Or of property to which she is entitled as separate estate: Brownrigg v. Pike, 7 P. D. 61.” In the Goods of Miskelly (I. R. 4 Eq. 62) it is said : “ It is settled that a will is entitled to probate if executors are appointed, although the will does not contain any bequest of personal estate,” citing In the Goods of Jordan (L. R. 1 P. & D. 555). In Brownrigg v. Pike (supra) the president (Sir James Hahmk) said of the will: “In the first place it is said that it deals only with realty, and is, therefore, not entitled to probate. It is not, however, the fact that this will is limited to the disposition of real estate. In the first place an executor is appointed by it, and this has been held to entitle a will
•I think- that this' is' not a case of intestacy as to the personalty^ For the testator by will has nominated certain persons as executors, • and perforce of the .will these executors hold the personalty in trust for .those who. are entitled to it under the Statute of Distribu
The English cases cited by the learned counsel for the appellant can be discriminated as exceptions which prove the general rule, which rule indeed is reiterated in those very judgments. In the Goods of Jordan (1 P. & D. 555) the executor renounced and, therefore, the next of kin was appointed, but the court said: “ The general principle is laid down in Williams on Executors (Part 1, book 3, p. 218 of 6th ed.), ‘ The bare nomination of an executor, without giving auy legacy, or appointing anything to be done by him, is sufficient to make it a will, and as a will it is to be proved.’ ” In O'Dwyer v. Geare (1 Sw. & Tr. 465) the will was that of a married woman before the Married Women’s Property Act of 1882, which will was made in pursuance of a power. (See Theob. Wills [6th ed.], p. 72.) And In the Goods of Tomlinson (supra) the president said: “ Where the will is of a man or a feme sole, the appointment of an executor has been held sufficient to entitle the will to proof; but Where it is the case of a married woman executing a power by will, different considerations arise. Though it is in the form of a will as required by the instrument giving the power, it is in fact a conveyance by means of the appointment exercised, and although an executor is appointed the executor takes nothing in his character of personal representative. It was upon that ground that Sir Cress-well Cresswell, in an exactly similar case— O'Dwyer v. Geare (1 Sw. & Tr. 465) — refused to admit to probate the will of a married woman in execution of a power which related only to real estate, and the same question was before Lord Penzance in the case of the Goods of Jane Barden (Law Rep. 1 P. & D. 325). It was suggested that a subsequent decision of Lord Penzance in the case of .the Goods of Elizabeth Jordan (Law Rep. 1 P. & D. 555), was inconsistent with his previous decision; but that was not the appointment of a married Woman, but the case of a feme sole making her will, in which case of course the rule applicable to wills in general would be put in force, namely, that the appointment of an executor prima facie entitles a will to be admitted to' proof.” Tugman v. Hopkins (4 M. & G. 389) is distinguished by tire same circumstance of the
The order must be affirmed, with costs.
Woodward, Gaynor, Bich and Miller, JJ., concurred.
Order of the Surrogate’s Court of Westchester county affirmed, with ten dollars costs and disbursements.
See 7th éd. p. 846.— [Rep, •