174 Misc. 292 | N.Y. Sur. Ct. | 1940
In this accounting proceeding decision of several controversies is necessary. The first has to do with the powers of the executor and trustee. The will appointed one corporate trustee. The codicil substituted another “ with all the duties in said will imposed upon and all powers and rights in said will conferred upon ” the first named. Reading codicil and will together, as is required, there is no limitation by way of the codicil of the powers and discretions vested in the executor and trustee by the will. Accordingly such powers inure to the acting executor and trustee.
The second question arises in respect of tangible personalty specifically bequeathed to a person not related by blood to the testator. This intended legatee predeceased the testator. The court holds that the legacy lapsed.
In the foregoing recitals it is to be noted that no cancellation of the gift to Northfield Schools under the sixth paragraph of the will is accomplished by the codicil. If cancellation of the gift is to be found it must be spelled out by implication. Argument is made that the language of the gift in the sixth paragraph of the will so identifies that gift with the residuary gift under the fifteenth paragraph that the revocation of the latter gift destroys the former as well. The text thus relied upon is:
“ (b) One-half thereof to Northfield Schools, a corporation located at East Northfield, Mass., to be added to the gift to said Northfield Schools provided for in the fifteenth clause of this will and to be disposed of as therein provided.”
It is urged by those who claim revocation that the quoted direction that the gift be merely added to the gift under the fifteenth paragraph requires a ruling that the gift under the sixth paragraph fails since the gift under the fifteenth paragraph was revoked. The court rejects this argument. The general rule is that a will and codicil are one testamentary instrument and that the provisions of the will may not be disturbed further than is necessary to give effect to the codicil. No revocation of prior testamentary provisions can be spelled out of the text of a codicil unless its language clearly requires that result. (Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86; Goodwin v. Coddington, 154 id. 283; Hard v. Ashley, 117 id. 606; Matter of Mitchell, 152 Misc. 228; Viele v. Keller, 129 N. Y. 190; Redfield v. Redfield, 126 id. 466; Austin v. Oakes, 117 id. 577; Matter of Saks, 170 Misc. 469; Matter of Armstrong, 125 id. 153.)
The fourth question concerns the source of payment of estate taxes. In this connection the finances of the estate are pertinent. The gross estate was in excess of $900,000. The net is approximately $781,000 after the taxes were paid. Legacies for which preference is claimed under the first eight paragraphs of the will total $763,920.53. General legacies amount to $200,000. There is no residuary, of course. The New York estate tax exceeds $15,000 and the Federal estate tax exceeds $79,000. If the claims of preference among legatees are allowed and if the preferred legatees are required to contribute ratably to the taxes something substantial can be paid on the general legacies.
The eighteenth paragraph of the will provides: “ I direct that all legacy, inheritance and succession taxes of every kind of any State and of the United States upon the principal of all dispositions herein made shall be paid out of my residuary estate.” “ There being no residuary estate, that provision of the will has no application.” (Matter of Caswell, 239 App. Div. 695.) The cited case is urged as authority for the position taken by the preferred legatees that they can exhaust the fund .otherwise available to pay a part of the general legacies before they are required to contribute anything themselves. The case is authority against them. In it the court found explicit exemption from the tax burden in the text of the will other than the nugatory residuary clause. The decision rests on that specific text. So also it was specific text of the will before him on which the surrogate relied in Matter of Meynen (173 Misc. 19). The court disagrees with the position of the preferred legatees. The text of deceased’s will which deals with taxes refers to taxes on “ all dispositions herein made.” The general legacies are provided for in paragraphs ninth to fourteenth, inclusive, of the will. The codicil merely increased to $100,000 the $50,000 gift in the ninth paragraph of the will. The text quoted from the eighteenth paragraph of the will respecting the tax burden obviously was meant by the testator to apply to the general legacies as well as to the preferred legacies. He did not thereby intend to discriminate against the general legatees and in favor of the preferred legatees because he expected obviously that neither group of legatees would have to pay the tax and that each would get his legacy in full. The general legatees suffer
The court holds that the preferred legacies are to be tentatively set up in full and the benefits to the general legatees tentatively computed so that they share pro rata in the balance left after the preferred legacies are tentatively set up and the income charge hereinafter discussed is provided for. Then the estate taxes are to be prorated among all legatees, both preferred and general, in the proportions established by this tentative schedule of benefits.
Submit, on notice, decree construing the will and settling the account accordingly.