114 Misc. 370 | N.Y. Sur. Ct. | 1921
On the accounting two questions arise. John A. Mitchell executed his will May 27, 1918, and died about a month later. He bequeathed 750 shares of stock in the Life Publishing Company, of which 180 were given outright to his sister, his cousin and three associates in his business. The remaining 570 shares he gave in trust to his widow for life, and on her death to several of his associates, including the three previously remembered. The weekly magazine Life was founded by himself and Andrew Miller in 1882. Mr. Mitchell’s interest was three-fourths, and Mr. Miller’s one-fourth of the firm. In 1892 the partnership was incorporated, with a capital of $10,000. Mr. Mitchell received 750 shares and Mr. Miller the remaining 250 shares in the company, which each retained up to Mr. Mitchell’s death. The former was president, and the latter secretary and treasurer of the company. The business grew from an original capital of $600 to a valuation, in 1920, of $1,000,000.
The first question in dispute is whether the legacies of 180 shares are general, as claimed by the executors, or specific, as contended by the legatees. The decision of this question also involves the payment of a dividend, declared within one year of the death of testator, amounting to $100 per share, or a total of $18,000. If the legacies are specific this amount goes to the legatees; if general, it goes into the residuary estate left to the widow. I hold that the legacies are specific. Matter of Security Trust Co., 221 N. Y. 213, sustains this finding. The 2d paragraph of the will, which relates to this stock, is as follows: “ Second. I give and bequeath to my sister, Anna M. Richards, one hundred shares of the capital stock of Life Publishing Company; to my cousin, Amelia H. Ames, fifty shares * * *; to Edward S. Martin ten shares * * *: to James S. Metcalfe ten shares
In Matter of Security Trust Co., supra, 219, Mr. Justice Crane says: “ It is the intention of a testator, as gathered from his entire will, which determines whether the legacy be general or specific.” A very slight indication of an intention to give shares owned by him when the will is executed is enough to make the legacy specific. Thayer v. Paulding, 200 Mass. 98,
The indications of intent in this will are just as strong as those in Matter of Security Trust Company. The {dock of the Life Publishing Company was not publicly dealt in. The- corporation here was even a closer one, with but two stockholders. The agreement of 1892 between Messrs. Mitchell and Miller stated: “ The parties desire * * * to retain as far as possible the entire management of said corporation so to be formed within their own control. ’ ’ Under this agreement also each had the power to purchase the other’s stock, in the event of a desire to withdraw or to sell the stock to an outsider. A fair construction of this contract is that this option only existed during the lifetime of the parties. After the death of either, the executor of the deceased did not possess the option to purchase from the survivor. In the present ease Mr. Mitchell bequeathed and owned at
Decreed accordingly.