14 Mills Surr. 332 | N.Y. Sur. Ct. | 1915
The executors of decedent’s estate have filed their account, and they ask the court to construe a certain clause of the will so that proper distribution of the estate may be made among the legatees.
After appointing her son to succeed her as trustee of a trust fund created by the will of her mother for the benefit of Rosalie Fanshawe and Margaret McGregor Clarke, and directing that he pay the income to them in equal shares, the testatrix provided:
“ To this I wish added my one hundred and sixty-six shares of ‘ St. Jo. Lead Mining Company’ and thirty-three shares of ‘ Cattle Co.’ to make up to them the money their father borrowed from their grandmother which they would have had, and to keep my promise to their grandmother that they should not lose anything.”
The will was executed on November 26, 1900. At that time the testatrix was the owner of 166 shares of stock of the St. Joseph Lead Mining Company and 33 shares of -stock of the Bonne Terre Farming and Cattle Company. Subsequently there was a reorganization of these companies and the testatrix received 16 shares of stock of the St. Joseph Lead Mining Company in exchange for her 33 shares of stock in the Bonne Terre Farming and Cattle Company. After the execution of the will and prior to the date of decedent’s death, the
The question propounded by the executors on this accounting is, whether the 654 shares of stock of the St. Joseph Lead Mining Company owned by the testatrix at the time of her death pass under the clause of the will above quoted, or whether that clause disposes of only 166 shares, and the remaining 472 shares go to the legatees mentioned in the residuary clause of the will.
The bequest of “ my one hundred and sixty-six shares of St. Jo. Ijead Mining Company ” is a specific bequest, because the testatrix refers to particular property and describes its nature and quantity. (Walton v. Walton, 7 Johns. Ch. 258 ; Crawford v. McCarthy, 159 N. Y. 519.) In the case of specific legacies the will speaks as of the date of .its execution. (Matter of Delaney, 133 App. Div. 409 ; affd., 196 N. Y. 530.) The bequest of the 166 shares of the St. Joseph Lead Mining Company stock being a specific bequest, the will must be construed in -its relation to that bequest as of the date of its execution. It was evidently her intention to give to the persons mentioned in the clause above quoted the shares of stock which she owned in the St. Joseph Lead Mining Company at the time of the execution of the will, and that that legacy was intended as compensation for the money which their father had borrowed from their grandmother, and which would have been bequeathed by their grandmother to them, if it had not been so borrowed.
At the time the will was executed the St. Joseph Lead Mining Company had accumulated a large surplus. This surplus was reflected in the market value of the stock, and it constituted
The decision in Brundage v. Brundage (60 N. Y. 544), is distinguishable from the matter under consideration in the important particular that the bequest considered by the court in the Brundage case was a general bequest and not a specific one. I have had occasion to consider a similar question in Matter of Leavitt (86 Misc. Rep. 609), and am inclined to think that the reasons given for the conclusion at which I arrived in that matter apply with equal force and relevancy to the matter now under consideration.
I will therefore hold that the bequest of 166 shares of the “ St. Jo. Lead Mining Company ” stock and 33 shares of the “ Cattle Co.” was a specific bequest, and that the legatees to
Decreed accordingly.