143 Misc. 657 | N.Y. Sur. Ct. | 1931
This is an application for the construction of the following portion of the decedent’s will, to wit:
“ I give and bequeath the following: One share of American Telephone & Telegraph Company stock to the Mary Immaculate Hospital of Jamaica, Long Island.
“ One share of American Telephone & Telegraph Company stock to my aunt, Mrs. Elizabeth Brady of 97 Lexington Avenue, New York, N. Y.
“ Three shares of American Telephone & Telegraph Company stock to be sold and divided evenly between the following children: “ Mary Jane Ward, 255 Seneca Parkway, Rochester, New York. “ Mary Elizabeth Digby, 4232 Marathon Parkway, Little Neck, L. I.
“ Margaretta Lippman, 217 Hawthorne Avenue, Yonkers, New York.
“Elizabeth Kinkead, 8568 — 115th Street, Richmond Hill, Long Island.
“ Isobel Kinkead, 8568 ■ — • 115th Street, Yonkers, New York.
“ I would suggest that the executor hold this American Telephone & Telegraph Company stock until after the next stock issue (if there should be one this year) and take advantage of the rights which will be issued, that is, sell them, and add the money to the above amount to be given to the children.”
Testatrix having disposed of the six shares of stock in her lifetime, it now becomes necessary to determine the nature of the foregoing legacies.
In approaching a determination of this question I am mindful of the inclination of the courts to hold that legacies are general rather than specific, because the testator usually intends to confer a benefit upon a legatee named in his will even though the precise thing may not be owned by him at his death. This presumption that the testator desires some benefit to reach the legatee should be set aside only when it can be found that the testator intended otherwise. (Tifft v. Porter, 8 N. Y. 516.) In that case the testator, at the time of the execution of his will and at the time of his death, was
An examination of the language of the testatrix’s will fails to disclose that she bequeathed any specific share of stock, definitely described by numbers or otherwise. The stock is neither earmarked nor identified, and in so far as the legacies given to the hospital, church and Elizabeth Brady are concerned, the testatrix has simply made a general bequest of stocks, to be satisfied in kind. (Tifft v. Porter; supra; Matter of Lendle, 250 N. Y. 502.) The direction to sell and divide the proceeds of the three remaining shares of stock among the persons mentioned coupled with the testatrix’s suggestion that the executor hold the stock and take advantage of rights expected to be issued “ and add the money to the above amount to be given to the children ” negatives any intention on her part to treat the gift as a specific legacy. The gift of the remaining three shares must be regarded as a general legacy, and in the event of insufficiency in assets all the legacies must abate pro rata.
Submit decree on notice construing the will accordingly.