196 A.D. 575 | N.Y. App. Div. | 1921
This is a proceeding by the executors for the construction of the will of John B. Manning. The will was duly executed on the 16th day of May, 1914, and the testator died bn the 23d of April, 1918, and his will was duly admitted to probate on the 24th day of May, 1918. The point on which the executors were desirous of having the will construed arose under paragraph 32 thereof, which is as follows:
“ Thirty-two. It is further my wish that my Executors turn*577 over to my daughter Agnes Manning Banon, the West Virginia State Bonds, North Carolina and South Carolina State Bonds which my estate now holds. I desire my daughter Agnes to have such bonds for the reason that she has taken such an active interest in said bonds, which are of very little value at the present time but may improve on her hands in a few years.”
The precise point for construction is with respect to what securities are referred to as “ West Virginia State Bonds.” The testator when he made the will and at the time of his death owned certain North Carolina and South Carolina State bonds, which were of no value. It appears that he owned no bonds of the State of West Virginia and that no bonds had ever been issued by that State. During the War of the Rebellion the inhabitants of approximately one-third of the territory of the State of Virginia held a convention at Wheeling and on the 19th day of June, 1861, restored and reorganized the government of the State of Virginia, and on the 20th day of August, 1861, adopted “ An Ordinance to provide for the formation of a new State out of a portion of the territory of this State,” and thereafter assembled in convention on the 26th day of November, 1861, framed and subsequently adopted a Constitution which as amended was ratified by the Congress of the United States on December 31, 1862, and thereby with the consent of the recognized legislative authority of the State of Virginia and pursuant to a proclamation of President Lincoln the separated territory became one of the States of the Union and known as the State of West Virginia. (See 12 U. S. Stat. at Large, 633, chap. 6; 13 id. 731, Proc. No. 3; Ordinances of Wheeling Convention of June 11, 1861, pp. 5-7, 16-19; Lewis on How West Virginia Was Made, pp. 284, 296, 317 et seq.; 7 Thorpe’s Am. Charters, etc., 4011 et seq.) Prior to the separation the State of Virginia had issued certain bonds which were then outstanding. The State of West Virginia had agreed by the ordinance authorizing the organization of that State to take upon itself a just proportion of the public debt of the Commonwealth of Virginia prior to the 1st day of January, 1861. After the war the State of Virginia undertook to make a settlement with the bondholders. Beginning in 1871 certain acts were passed by the Legislature of Virginia
“ Treasurers Office
“ $147. Richmond, Va., Dec. 10, 1894.
“ Register No. 172 • Transaction No. 278
“ This is to certify
“ that the
“ Commonwealth of Virginia has this day discharged her equitable share of unfunded interest presented for funding under the provisions of the Act of the General Assembly of Virginia approved February 20th, 1892, leaving a balance due to Bearer of One Hundred and forty Seven 00/100 Dollars bearing no interest to be accounted for by the State of West Virginia without recourse upon this Commonwealth. "JOSIAH RYLAND, Jr.,
“ A. W. Hannan, Jr., Second Auditor.
“ Treasurer ”
It. appears that the certificates representing the principal issued under the acts of 1879, 1882 and 1892 and the cere
It appears to be a certificate for principal issued under the act of 1871. We are not otherwise informed by the record with respect to the form of the certificates issued by Brown Brothers representing interest certificates held by them, and it is, therefore, at least to be inferred that they all bore the same heading, namely, “ Virginia Debt Certificate,” and doubtless the certificates recited that they were issued for
It is contended, however, by the respondents that, owing to the manner in which the testator kept his account of these securities, he differentiated between the certificates issued for principal and those issued for interest, and that in view of the fact that in said paragraph of the will he referred to the “ West Virginia State Bonds ” as being then of but little value, which was only true with respect to the certificates for interest, it is a reasonable inference that he had in mind the interest certificates only. His estimate of the value of the certificates for principal is indicated by entries in his books in 1914 showing valuations of about twenty-one per cent or twenty-two per cent of par. When he made the will he held original and Brown Brothers certificates for principal of the par value of $377,458.81 which he carried on his books at a valuation of $83,040.94, but which, according to the market quotations for the securities nearest in point of time, were worth approximately $203,798.79; and at the time of his death he held certificates of the par value of $425,147.08 for principal, the market value of which was approximately $209,237.01. There was no active market for these securities and it is quite evident that had they been offered for sale in any considerable quantities, the market price would have dropped rapidly.. At the time he made the will he owned interest certificates of the par value of $6.3,762, which he carried on his books as worth $13,390.02, and which were of the market value approximately of $956.43; and when he died his holdings of interest certificates had a par value of $66,135.55 and were worth only about $992.03. These facts are neither controlling nor do they aid us materially. We cannot hold that a man owning such a great fortune, and leaving each of his children as a residuary legatee upwards of $1,000,000, would have devoted an entire paragraph of his will to leaving to the one of them
Clarke, P. J., Dowling, Merrell and Greenbaum, JJ., concur.
Decree, so far as appealed from, reversed, with costs to all parties appearing separately, to be paid out of the estate, and modified as directed in opinion. Settle order on notice.