147 N.Y.S. 1016 | N.Y. App. Div. | 1914
The decree from which this appeal is taken was entered upon the report of a referee whose conclusions were adopted by the surrogate. No question is raised as to the accounts of the executor, the only contest being as to the proper disposition to be made of the residuary estate of the testatrix.
Penelope McCrea, an elderly maiden lady, died on February 25, 1908, leaving a will dated March 18, 1907, at which time the testatrix was about eighty-four years of age. She left as her sole heir and next of kin Mrs. Louise Terry Cruse, a niece, and Augustine L. McCrea, a nephew. After specific bequests of certain personal articles to her niece she directed that all stocks and bonds in the custody of the United States Trust Company should be delivered to said company as trustee to hold the same for the benefit of Mrs. Cruse during her lifetime. At her death the securities were to be sold and the proceeds paid to a charitable institution for specific purposes. All the residue of the estate the executor was directed to turn into'money and to pay therefrom debts, funeral expenses and expenses of administration and certain legacies, including one of $2,000 to her nephew, Augustine L. McCrea. The controversy in the case arises out of the disposition of the balance of the residuary estate as to which the will provides as follows: “After the payment of the above debts, funeral, testamentary expenses and legacies, I direct my executor hereinafter named, to pay the balance of said residuary estate to the trustees of the Home for Old Men and Aged Couples, now located at Amsterdam Avenue and 112th Street, in the Borough of Manhattan, City of New York, for the endowment of two single rooms in said Home, one ‘ In Memoriam of my beloved brother Edward Price McCrea,’ late Captain in the United States Navy, and one ‘In Memoriam of my beloved sister Catherine Laquer McCrea.’ Should the sum to be paid to the trustees of said Home by my executor be more than sufficient to endow the two rooms aforesaid, I request said trustees to invest the
It appears that the balance of the residuary estate to which the foregoing provision is applicable amounts to a very large sum of money, upwards of $200,000; that the fixed cost of endowing a room in the Home for Old Men and Aged Couples is $5,000; that no distinction is made in the treatment of its inmates whether occupying endowed or unendowed rooms, all receiving the same care and treatment, the annual cost of which per capita is necessarily small. It is quite apparent, therefore, that if the will be carried out according to its terms the income derived from the fund, after the endowment of the rooms, will be much greater than can be used up, under the rules of the home, for the sole benefit of the occupants of the said endowed rooms. Under these circumstances the referee was of the opinion, and the surrogate has sustained him, that the bequest of the balance of the residuary estate directed to be paid over to the Old Men’s Home should be upheld only to the extent of $10,000, the amount necessary for the endowment of two rooms, and that the remainder of the balance of said residuary estate should be considered as property undisposed of by the will and should be paid over to the next of kin, and to the respondent Harding who claims a part thereof under assignments from the niece and nephew. Neither the learned surrogate nor the referee has written an opinion stating the reasons for arriving at this conclusion. The respondents, however, seek to support it by arguing that the amount of the residuary estate was so out of proportion to the possible cost of that maintenance to which the testatrix requested that it should be applied that it is quite improbable that the testatrix realized the extent of her estate or intended to give to the home so large a bequest as the language of her will, if literally read, would imply. It is argued, therefore, that we should undertake to determine how much the testatrix would probably have left the home if she had known the extent of her property, and should cut down her legacy to that sum, a process which would come perilously near making a will for her. This contention is
Nor is it fatal to this gift to the home that it will be impracticable to use the entire interest of the fund bequeathed in the precise manner that the testatrix requested that it should be used. The words of gift are absolute and unequivocal; the direction as to the disposition of the income is merely in the form of a request. It is a well-established rule that whenever a will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention to cut down the absolute gift as the prior part does to make it. (Lambe v. Eames, L. R. 10 Eq. Cas. 267; Clay v. Wood, 153 N. Y. 134.) The case last cited is authority for the proposition that mere precatory words superadded to an absolute bequest will not be sufficient to qualify the absolute gift, or impress a trust upon it, unless the intention so to do is clearly expressed in the will itself, for otherwise there would be introduced a repugnancy between the different portions of the will which the rules of construction forbid. An instructive case, and one which, as we consider, is determinative of the validity of the bequest under consideration, is Johnston v. Hughes (187 N. Y. 446). In that case the testator had directed his executors to sell his real estate and ‘(to divide the net proceeds of such sale as follows: ‘ Three equal fourth parts thereof to the trustees of St. Francis Hospital in the city of New York, for the benefit and use of the Blessed Virgin Mary purgatorial fund of said hospital. ” There was no such fund in existence, and the legacy could not, therefore, be literally applied to the purpose designated. There was indeed no corporation known as St. Francis Hos
Upon the principal question involved in this appeal we are, therefore, of the opinion that the surrogate was in error and that there was a valid absolute gift of the balance of the residuary estate to the Home for Old Men and Aged Couples. This conclusion disposes of the claims of the respondent Harding who can take nothing under his assignments from the nephew and niece if they are entitled to no part of the residuary estate.
The legacy to the Old Men’s Home is now claimed by the appellant Abbott under an assignment from the home and the respondents suggest infirmities in that assignment. This, however, is no concern of theirs. If the assignment is for any
But one further question remains to be considered. The will contains the following clause: “Sixth. If any relative contests the probate of my will, or makes any attempt to prevent the carrying out of my intentions, as herein expressed, then I direct that such relatives shall lose and forfeit any claim or interest he or she may have therein, under any of the above provisions.”
Augustine L. McCrea, to whom a legacy of $2,000 was given, commenced an action in the Supreme Court for the purpose of invalidating the will by reason of undue influence and incompetence. He did not press it, however, and with his acquiescence a judgment was entered dismissing his complaint. and establishing the validity of the will. The surrogate was of the opinion, and has so decreed, that in consequence of this action on the part of Augustine L. McCrea he forfeited his legacy. As to when a legacy is forfeited under such a clause in a will as the one quoted above there is no little Confusion in the cases, with little that can be said to be authoritative. The approved rule appears to be that in case of a legacy of personal property such a provision is merely in terrorem and not enforcible unless there be a gift over in case of breach, and that a general gift of the residue is not a gift over. (Hogan v. Curtin, 88 N. Y. 162.) The rule seems to be otherwise in case of a devise of realty, but in this case the direction to the executor to sell the real estate was imperative and worked an equitable conversion so that the gift to the home was of personalty.
The result is that the decree of the surrogate will be so modified as to direct the executor to pay over the whole balance of the residue in rhis hands to the assignee of the Home for Old Men and Aged Couples, and by reversing so much of said decree as charges against the sum to be paid to appellant
Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.
Decree modified as directed in opinion and as so modified affirmed, with costs to appellant Abbott and to the executor payable out of the estate. Order to be settled on notice.