107 Misc. 416 | N.Y. Sur. Ct. | 1919
Henry Burden, the testator, died on or about November 1, 1899, leaving a last will and testament which was duly probated and letters testamentary granted to Mrs. Orcelia Burden, the testator’s widow, the executrix named in the will.
On September 22,1913, the letters to the widow were revoked and letters of administration with the will annexed were duly granted to Wilber M. Henderson, the accounting party herein.
The will gave the widow the use and income of the entire estate during the term of her natural life. It
After the provision for the wife follow five clauses, each giving a specified sum of money, payable at the death of the widow, viz., to testator’s brother, Louis P. Burden, $1,000; to his niece, Nina Burden, $500; to his brother, John F. Burden, $500, or in case of ' said brother’s decease prior to that of the widow, to his daughter, Nina Burden; to a brother, Ira Burden, $500, or in case of his not surviving the widow, to his son, Edgar N. Burden; and to his brother, George B. Burden, $500, and in case he died before the widow, to his daughter, Olive Burden.
The 9th clause is as follows:
“Ninth. Upon the decease of my said wife, I devise and bequeath all the rest, residue and remainder of my real and personal estate, of every name and nature, unto Henry B. Compan, of Morrisville, N. Y., in trust, nevertheless, and for the purposes and upon the trusts hereinafter recited, that is to say:
“1. To convert the same into money and invest the same in lawful, interest-bearing securities, and keep the same so invested during the continuance of the trust hereby created.
“2. In case my nephew, Henry Burden, shall not have arrived at the age of twenty-one (21) years, then and in that event to pay over the income arising therefrom to my brother, John F. Burden, until such time as the said Henry Burden shall arrive at the age of twenty-one years.
■ “ 3. To pay over to the said Henry Burden the sum
“4. To pay over to the said Henry Burden the sum of Two Thousand Dollars ($2,000.00) of the principal of said .residue, when he arrives at the age of twenty-five (25) years; and to pay over to the said Henry Burden the income arising from the remainder of said residue, until he arrives at the age of thirty (30) years.
“5. To pay over to said Henry Burden - the remainder of said residue, together with all accumulations of interest thereon, when he arrives (Henry Burden) at the age of thirty (30) years.
“6. In case of the death of said Henry Burden before he shall become entitled to receive the whole or any part of said residue, then and in that event, to pay over the said residue or the remainder' thereof, to my then surviving brothers and sisters, to whom I then devise and bequeath the same, share and share alike; it being my intention that no part of the principal or income of said residue shall vest in the said Henry Burden until the same is due and payable to him under the foregoing provisions of my will.”
By the 10th clause Henry B. Compan is nominated as executor of the will • ‘ from and after the death of my said wife,” with power to sell and convey any of the real estate that may remain unsold at the decease of testator’s said wife.
The estate originally consisted of real and personal property. From the account on file it appears that all the personal property was used in the care of the widow, who died in July, 1917, and that during her
A question as to the construction of the will has been raised, the attorney for the administrator claiming that this money is to be paid to the general legatees, while the creditors of Henry Burden insist that it shall be paid to them.
In this, as in all wills, the intent of the testator, unless inconsistent with the law, must be given effect; The intent must, if possible, be read from the will itself. If any provision, otherwise obscure, can be clarified by comparison with the other provisions, this may be done so far as the various parts have any bearing or connection, one to the other. In other words, in ascertaining its meaning all the parts of the will are to be taken together.
Certain rules for interpreting wills have from time to time been promulgated by the courts, but those rules are only aids to interpretation. They are not hard and fast rules, like rules of property, to be applied rigidly in every case; they are for the sole purpose of ascertaining the intention of the testator and when that has been done the intent must control, regardless of all rules that have been formed for the purpose of determining their construction. Fulton Trust Co. v. Phillips, 218 N. Y. 573.
The general scheme of the .will is simple enough. First and above all the testator had in mind the care and maintenance of his wife. The entire income and the corpus, if necessary, was to be devoted to that end and she was to be the sole judge of her own neces
If the estate had consisted entirely of personal property, or if the money on hand was a residue of personal property, or if we assume that the direction to the trustee to sell was an equitable conversion of the entire estate into personalty, then it is clear that the general legatees have preference and priority over the residuary legatee.
The law seems quite well settled that a mere power to sell real estate is not an equitable conversion unless the poAver has been exercised before the accrual of Avhatever rights may be in question. In such case there is an actual conversion. But a positive direction to sell real estate and convert the same into money is under ordinary circumstances an equitable conversion of the real estate into money and the same would have to be considered as money for the purposes of the Avill. Matter of Caldwell, 188 N. Y. 122,123.
Had the direction in the case at bar to sell the real estate and convert into money been in general terms and directed to the executor as such, it would have fallen A\dthin the rule in Matter of Caldwell, supra, but it Avas a direction to the trustee and apparently for. the purposes of the trust only that the imperative direction to sell Avas given. That the testator had such, a distinction in mind is emphasized by the fact that the Avife, during her executorship, is given the poAATer to sell real estate when in her judgment it
So that for the general purposes of the will he merely authorizes a sale of the real estate but for the purposes of the trust he directs it. I think this brings the case within the rule of Parker v. Linden, 113 N. Y. 28, that a direction to sell for a specified purpose is not an equitable conversion for the general purposes of the will. Had the widow during her lifetime' sold the real estate, or had she died before Henry Burden, the nephew, became thirty years of age and the new executor as such sold the real estate, then there would have been an executed power of sale and actual conversión of the real estate into money, aiid I think that then the proceeds could have been applied to the payment of the general legacies, especially in view of the clause that no part of the principal or income of the residue shall vest in said Henry Burden until the same is due and payable to him under the foregoing provisions of the will. But notwithstanding the provision against vesting, the residue had vested in Henry Burden, the nephew, before the real estate was sold, because he had then reached the age of thirty years and more and the widow was deceased.
"Where a conversion is necessary to accomplish the purpose and intention of the testator in the disposition of the proceeds or when the general scheme of the will requires a conversion, although not in terms imperative, the conversion will be deemed to be immediate. Lent v. Howard, 89 N. Y. 177; citing Dodge v. Pond, 23 id. 69.
Many more cases might be cited but there seems to be no doubt as to the general rule.
That brings us back to the original question as to whether or not the testator intended to charge the pecuniary legacies upon the real estate. For the reasons stated, I do not think it can be read from the will that he so intended.
The following facts not appearing in the will have been conceded in this proceeding, viz.:
That Henry Burden, the testator, died at Morris-ville, N. Y., on November 1, 1899. The will in question was made about eleven months before his decease. He was sixty years of age when he died and his wife ■was sixty-four. Testator was a veteran of the Civil War and drawing a pension and after his decease his widow received a pension of $8 per month which was later increased to $12 per month. Testator’s estate at the time of his decease, as shown by the inventory made soon after, consisted of a house and lot in Morrisville, being his home, worth $1,000, and a lot of ten acres of land near Morrisville worth $500, and personal estate amounting to $5,432.98. The house was furnished suitably for housekeeping and the widow lived there, occupying the home house and lot with its furnishings until her decease in 1917. The testator’s probability of life when he died was, as
General pecuniary legacies are not a charge on real estate unless so stated in the will in express language- •or by necessary implication or unless by extrinsic facts it appears that such must have been the intent. Brill v. Wright, 112 N. Y. 129; Irwin v. Teller, 188 id. 32; Ely v. Megie, 219 id. 112.
In view of the authorities, I cannot say from the will, either alone or in connection with the extrinsic facts and circumstances, that the testator intended to charge the general pecuniary legacies on the real estate.
I therefore hold that the balance in the hands of the administrator with the will annexed must be paid to Henry Burden or his judgment creditors.
Decreed accordingly.