157 Misc. 68 | N.Y. Sur. Ct. | 1935
The petitioner in this proceeding is Hazel B. Moebus who seeks a construction of paragraph third, subdivision 1, of the decedent’s will, which reads:
“ Paragraph third: I make the following specific gifts and bequests:
“ 1. To my daughter Hazel B. Moebus One Hundred Thousand ($100,000.00) Dollars, providing she survives me. If she does not survive me, said amount shall be distributed per stirpes to her lawful issue. This may be delivered to her or them in cash or securities as soon as my Executors can conveniently do so.”
The petitioner urges that a preference should be given to this legacy over all the other legacies and trusts contained in the will.
The decedent had considerable means. He owned and maintained a fourteen-room house and employed several servants. He had an automobile and a chauffeur. His daughter had complete charge of running the household. He paid all the running expenses and made a liberal allowance to his daughter to set the table, which allowance was supplemented with substantial advances of money from time to time for her personal use. She received $15,000 insurance after her husband’s death. That was the only money she had except those sums which were given to her by her father. She cared for him during his last illness.
The decedent was generous to all his relatives, particularly to the widow of his deceased son and her child, and to the granddaughter above mentioned whom he sent to college.
The will devises the home to the petitioner free of all mortgages and other incumbrances, conditioned upon her survival of him. He directed that the house become part of the residuary estate if she predeceased him. In addition to the $100,000 bequest, he also left his daughter a trust fund of $300,000.
Where general legacies must abate, it is the rule that those for the support and maintenance of near and dependent relatives, not otherwise provided for, will be preferred. It is a rule of implication based upon the natural human presumption that the testator wished those whom he had assumed to maintain and support, to take precedence over those to whom he was not so strongly bound by ties of affection or duty. (Matter of Neil, 238 N. Y. 138, 140; Scofield v. Adams, 12 Hun, 366, 370, 371; Matter of Smallman, 138 Misc. 889, 909.)
It is always a question of the intent of the testator, as shown by the relationship of the parties with respect to the financial dependence of the one upon the other, and the language of the will. (Matter of Neil, supra.)
This petitioner was the closest relative of the testator, and the dearest in his affections. It is evident that he regarded the home which he provided as their home. That he regarded it as her home as much as his is evidenced by the devise of it to her if she survived him. If she did not survive, he looked upon it as an asset
I find that the $100,000 bequest to the petitioner is a preferred legacy, and should be paid regardless of the abatement of the general legacies. Settle decree.