126 Misc. 91 | N.Y. Sur. Ct. | 1925
This is a proceeding for the construction of the will, and particularly paragraph 8 thereof. That paragraph reads as follows: “ I give and bequeath to each of my faithful servants Lena Anderson and Weldon Kershaw, if in my employment at the time of my death, the sum of Fifteen thousand dollars, and to each person not named above, who shall have been in my service ten years or more immediately preceding my decease the sum of Ten thousand dollars, and to each person who has been in my service for five years immediately preceding my decease the sum of Five thousand dollars.”
The decedent left an estate of $10,000,000. The residue is ultimately to go to certain charitable and educational corporations and institutions. The terms of the will and the extrinsic testimony evince the great interest of the testatrix in the many employees of her household and upon her estates.
Various persons claiming to be in the service of the testatrix and entitled to the legacies under the terms of the will were cited in the proceeding. With the acquiescence of all the parties, a referee was appointed to take testimony as to the identity of the legatees, the nature of the services rendered by these persons, the period of such service, and to report to the surrogate the evidence and his opinion thereon. This report is now before the court for confirmation. The executors or their attorneys, in their own interpretation of the will, restricted the class of beneficiaries and paid the legacies to four servants, only, employed in the household of the testatrix in the following capacities: Butler, second man, houseman and the personal maid of Mrs. Thompson. The referee in his report held that this restriction was erroneous, that the testatrix intended the objects of her. bounty to include not only the servants in the house, but her chauffeur and those employed upon the grounds of her various residences as.superintendents, gardeners, farm workers and as laborers. His conclusion on this phase must be confirmed. He has found that seventeen employees are entitled to a legacy of $10,000 each, and six employees are entitled to a legacy of $5,000 each. He has excluded from participation in the benefits of the will seven persons.
In testamentary provisions of this class, the language of the will must be examined to ascertain the intention of the testator. Necessarily the beneficiaries vary as the terms of the will vary. Here the intent of the testatrix to include all persons in her service for the requisite periods is reasonably clear. It is not necessary to go beyond a strict and literal interpretation of the language used by
(2) It is claimed by the executors and certain other parties
The special guardian contends that this conclusion might be extended to include casual or occasional workers, such as a laundress or hairdresser who might be employed but one day a week. The . distinction is obvious, however, between the latter class of workers and the persons employed as day laborers by Mrs. Thompson. These workers were not casuals but were employed regularly during the requisite period of years with excusable or necessary absences acquiesced in by their immediate superiors. I hold that a person is in the regular service of his master whether he be paid a per diem, or a weeldy, monthly or yearly wage or salary. This conclusion has been adopted by the courts in the determination of the status of per diem employees in the field of municipal law, in the law of master
(3) The remainder of the report of the referee is likewise confirmed. His conclusion as to Elizabeth Eisline, who was a regular monthly employee for over ten years, and in the service of Mrs. Thompson for that period, is correct. She performed all the services as bookkeeper required of her. She was continuously employed by the decedent for over thirteen years. It appears that she was employed at the same time by another person, but with the knowledge of Mrs. Thompson. That fact does not disqualify her under the terms of the will as a legatee.
Minnie McKerr is likewise entitled to her legacy. She was employed as a butter-maker for a period of twenty-one years. The fact that she received relatively small wages in that capacity is urged as one ground of disqualification. No limitation was placed by the testatrix upon the smaller paid employees and the referee has correctly found that she was in the service of the decedent and entitled to her legacy.
A typical example of the extreme and narrow limitation exercised by the executors is found in the case of George Roy. He was employed by the decedent for over ten years. In May, 1923, two months before the death of Mrs. Thompson, he became paralyzed and was removed to the Canandaigua Memorial Hospital, established and maintained through the generosity of Mrs. Thompson. He had been a continuous employee and was paid upon a monthly basis. After he was taken to the hospital, and pursuant to the direction of Mrs. Thompson, he was placed upon half pay. He was never discharged from her employment. The referee has correctly found that he was in her service at the time of her death. (Matter of Mitchell, 114 Misc. 370.)
The referee has likewise correctly recommended payment of the sum of $5,000 to Thomas Chappel, a chauffeur employed by the testatrix immediately prior to her death. The evidence shows that he was given a leave of absence by Mrs. Thompson for service in the World War with the Canadian army. After service in France and discharge from the army, he returned to her employment under a previous arrangement made by her. The leave of absence, therefore, was with her express consent and he must be deemed to have been five years in her service and entitled to his legacy under the terms of the will.
Submit decree on notice construing the will accordingly, confirming the referee’s report and overruling the exceptions filed thereto.