1 Mills Surr. 65 | N.Y. Sur. Ct. | 1899
The exceptions which have been filed to the report of the referee present for decision the question whether the bequest to Alphrona Town, contained in the codicil to the will of the decedent, lapsed by reason of her death during the lifetime of testator’s widow, to whom was given for life, or while she remained unmarried, the real estate and the residuary personal estate disposed of by the will. Upon her death or remarriage, the executors were directed by the codicil to sell and convey the real estate and convert the personal property into money, and out of the proceeds to pay to one of testator’s sons $1,500, and to Alphrona Town $800, “ which said amounts,” quoting the language of the testator, “ I do hereby give and bequeath unto them to be paid only as aforesaid. After the payments have been made, the balance remaining in the hands of my executors shall be divided between my two sons,” naming them. The referee has decided that the bequest in question was contingent, and that it could only become vested or effective by the legatee’s surviving the happening of the death or remarriage of the widow. His decision is principally based upon the circumstance that the testator directed the conversion of the real estate at a future time and the payment of the legacy from the proceeds. The importance which he has attached to this circumstance is attributable to the supposed effect of the decisions which are referred to by him and of the rules which they mention as proper aids in appropriate cases in the construction and interpretation of wills. These cases are Warner v. Durant, 76 N. Y. 136; Vincent v. Newhouse, 83 id. 505; Smith v. Edwards, 88 id. 92; Delaney v. McCormack, id. 174; Shipman v. Rollins, 98 id. 311. A careful examination and consideration of these
Exceptions sustained.