47 Misc. 538 | N.Y. Sur. Ct. | 1905
Martha A. Blackstone died in the town of Kirkland, Oneida county, 1ST. Y., on the 22d day of October, 1903, leaving a will dated November 3, 1900, and a codicil December 9, 1902, by which she bequeathed certain specific articles to friends and relatives; $400 to Clinton Cemetery
Her will and codicil were holographic.
Her estate consisted of a house and lot in 'Clinton, 25T. Y., of the value of $1,500, and personal property $4,836. Upon the date of the execution of her will she possessed $400 in money; at the date of her codicil $588, and at the time of her death $327. After payment of debts, legacies and expenses, the net personal estate amounted to $3,839, composed of household furniture, mortgages, railroad stocks and bonds. iSaid furniture, however, is not the subject of dispute here, as that was disposed of by consent of the respective parties.
The real estate was not devised and. descended by operation of statute to her brother.
The legatee Harriet E. Blackstone, a cousin of decedent, claims that by virtue of the phrase contained in said fourth clause “ All money that remains 'after all debts are paid, to her ” she is entitled to said net personal property; while the brother of decedent insists that she died intestate as to the same and that it should be distributed and the securities delivered to him as her sole next of kin.
Considerable discussion has been had by the courts as to what the term “ money,” or the phrase “ what remains of my money” included when used in a testamentary instrument. They have been the subject of much litigation.
Each case depends to' some extent upon the conditions' iamd circumstances surrounding the testator and his estate. Some courts upon the entire context of the will have excluded all
In Waite v. Combs, 5 De G. & S. 676, the testator directed his executors “ to take and receive all moneys ” that might be in his possession or due to him at the time of his decease and invest dt for the benefit of his wife, and it was held that this was equivalent to a gift .of the general personal estate, and it was decided upon the theory that wherever legacies are given payable out of the estate, the gift of the residue of the money would include all of the personal estate.
Where a testator said (Cowling v. -Cowling, 26 Beav. 449), “ I bequeath unto my beloved wife my goods and furniture, * * * my plate and linen, all moneys and notes that may
be due to me at my decease,” it was held that stock was not included in the bequest, as from the context the testator intended to give only those three enumerations of property which he had specified.
In Nevinson v. Lady Lennard, 34 Beav. 487, where the clause under consideration was “ When all my just debts and legacies are paid * * * I give the residue of all my money, either in my bankers’ hands or elsewhere, if any such cash be remaining, in trust” (then specifying the nature of the trust), it was held that the word “money” coupled with
In Prichard v. Prichard, L. R., 11 Eq. 232, where a testator directed that the income arising from “ my principal money shall be paid to my wife, while unmarried, for the support of herself and the education of my children,” it was held that the whole of the personal property passed under said clause.
The case of Dowson v. Gaskoin, 2 Keen, 14, was in some respects quite similar to the one under consideration. There a testator gave legacies and specified articles to relatives, made certain directions as to her burial, appointed her executors, and then stated “ Whatever remains of money, I bequeath to Edward Dowson’s five children, to be equally divided.” In construing this phrase, the court held that there was included in it so much of the stocks and moneys as remained after payment of the debts and legacies of the testatrix.
Attention is also called to the similarity of the clause in Rogers v. Thomas, 2 Keen, 8, to the one in the will in question. There the testatrix, after giving various legacies of sums of money, bequeathed “ All which may remain of my money after my lawful debts and legacies are paid ” to certain legatees, and it was held that the residue of the decedent’s personal property, consisting of certain bank annuities and other personal property, passed and were included in said clause. •
In Matter of Miller, 48 Cal. 165, after certain bequests, the will contained this paragraph, “ that my mother receive the balance of my money, for her benefit as long as she lives, and for her heirs after,” and it was there held that the word “ money ” was used in its widest and popular sense so as to include the personal estate of testator.
The two eases principally relied upon by the brother, James L. Blackstone, are Beck v. McGillis, 9 Barb. 35, and Mann v. Mann, 1 Johns. Ch. 231. In the former case it was held that under a bequest of “ all moneys that I shall die possessed of ” the term was used in its restricted sense and did not include a certain bond and' mortgage and certain rents; and insurance money due upon certain policies belonging to testator. It may be observed, however, that the decedent was careful to bequeath certain bonds and mortgages and certain shares of stock and neglected to include one bond and mortgage and rent due from one tenant,>and it was properly argued that having directed what should be bequeathed to the legatee who was his daughter, under the phraseology of the will she should not receive more than was specifically bequeathed her.
In Mann v. Mann, supra, the testator bequeathed to> his wife “ all the rest, residue and remainder of the moneys belonging to my estate at the time of my decease ” and certain furniture, farming stock, utensils, etc.; to the daughter of his brother $500, to he paid out of the proceeds of the sale of certain real estate; cancelled a debt which his brother owed him, and the residue of his estate, both real and personal, he devised and bequeathed to the two children of his brother and the representatives of two deceased brothers, in equal portions. It was held that said clause did not include bonds, mortgages or other securities.
There is no doubt from the will itself but what this was the
These two cases are not in conflict with other cases where moneys have been held to include stocks and securities, because in each particular case the intent is drawn from the phraseology, clearly indicating what the wish of the testator was. BTo case, however, has been found where the words “ all money that remains ” or “ all remaining money ” when used as a residuary clause has been held differently than that said words embraced and included the remaining personal estate, whether it be money, stocks or bonds.
In Smith v. Burch, 92 N. Y. 228, the court said: “ The word ‘ money ’ has sometimes been held to include securities, stocks, personal property, money in bank and money in the hands of agents, when the context and all the circumstances which were rightfully considered indicated such to be the intention of the testator.” The same doctrine is held in Sweet v. Burnett, 136 N, Y. 204.
The rules laid down in the foregoing cases may be applied with much force to the case at bar.
The term “ money ” can be used in a restricted and also in an enlarged sense. In one it is a standard of value or medium of exchange stamped by government authority; and in the other, in addition to this, it includes stocks, bonds and other personal securities of an investment nature. Which of these did the testatrix have in her mind when she used the expression in ques
Taking the will in its entirety, the conclusion is reached that what remained of said personal estate was bequeathed in said fourth clause to the legatee therein named.
Decreed accordingly.