171 Misc. 734 | N.Y. Sur. Ct. | 1939
Certain of the issues involved in this accounting proceeding have been disposed of by the executed agreement of compromise of the parties approved by the Surrogate in his intermediate decree. (New York Law Journal, June 24th, 1939.) The remaining issues are disposed of as follows:
(1) I hold that the bequest of five hundred shares of the preferred stock under paragraph seventh of the will to David E. Lamborn, the son of the decedent, was clearly specific. The intent of the testator as expressed in the will and particularly in the paragraph involved, and the extrinsic evidence including the peculiar nature of the corporation and the fact that the stock was closely held justify this conclusion. In the first sentence of paragraph seventh the testator bequeathed to his son five hundred shares of the preferred stock of Lamborn & Company. Then followed this significant sentence which strongly characterizes the nature of the gift as specific. “ This devise and bequest of the preferred stock is intended to equalize the gifts and distribution of my property which I have heretofore made among my other children during my lifetime.” The testator at the time of his death was a resident of New Jersey and the disposition here involved and other disputes as to whether the legacies were specific or general are to be tested by the law of that state. (Matter of Gifford, 279 N. Y. 470, 474; Dec. Est. Law, § 47.) If the testator had died a resident of the State of New York there would not be the slightest doubt that the nature of the bequest to the son was specific. (Matter of Security Trust Co., 221 N. Y. 213; Matter of Martin,
The testator here possessed at the time of the making of the will approximately four thousand shares of the preferred stock of the corporation. These shares were likewise owned by him at the time of his death. In the last sentence of paragraph seventh quoted above he referred to his intent to equalize the gifts to his children and specifically mentioned the distribution of “ my property ” in his plan to divide his assets upon an equitable basis. The use of the word “ my ” related back and characterized the gift in the same paragraph of the preferred shares to the legatee David E. Lamborn. In addition, the residuary clause of the will also made general reference to the disposition of the “ rest, residue and remainder of my estateThe estate of the deceased legatee, David E. Lamborn, therefore took the stock by way of a specific bequest and is entitled to the payment of all dividends which accrued upon it from the date of death. The following authorities in New Jersey sustain the conclusion reached by the Surrogate. (Zorner v. Foth, supra; Kearns v. Kearns, 77 N. J. Eq. 453; 76 A. 1042; Blair v. Scribner, 67 N. J. Eq. 583; 60 A. 356; Burnett v. Heinrichs, 95 N. J. Eq. 112; 122 A. 681.) The stock appears to have been changed in character because of the alteration in the corporate structure since the date of death. The present equivalent stock representing the original five hundred shares of preferred stock must be delivered to satisfy the specific bequest.
(2) I hold that the gifts of common stock of Lamborn & Company in paragraphs eighth, ninth and tenth of the will are also specific in character and that the legatees named are entitled to the payment of all dividends made since the date of death of the testator. The reasons and authorities just stated and applied to the determination of the nature of the legacy to David E. Lamborn sustain a
(3) The surrogate holds that the legacy to the Westtown Boarding School located in the State of Pennsylvania is valid and effective. The law of that state controls the determination of validity or invalidity of the legacy. (Matter of Idem, 256 App. Div. 124; affd., 280 N. Y. 756.) The school is unincorporated, but under the law of Pennsylvania a gift to an unincorporated association does not fail where the legatee is a charitable organization. (Matter of Rathbone, Delehanty, S., 170 Misc. 1030; Lawson’s Estate, 264 Penn. St. 77; 107 A. 376; Yard’s Appeal, 64 Penn. St. 95.) The surrogate holds upon the proof submitted that the Westtown School is a charitable institution. The courts of Pennsylvania many years ago specifically passed upon the question and so held in Price v. Maxwell, (28 Penn. St. 23). Interest on the legacy will be allowed from the customary date of presumed payment at the rate earned on the estate assets during the period of administration.
(4) The legacy to the Union Theological Seminary in the sum of one thousand dollars is valid, without the deduction of any amount for inheritance and estate tax. Interest thereon is allowed at the rate earned by the estate assets during the period of administration in accordance with the stipulation of the attorneys made upon the minutes and approved by the Surrogate.
Tax costs and submit decree construing the will and settling the account accordingly.