14 Mills Surr. 379 | N.Y. App. Div. | 1915
The following is the opinion of the referee:
The executors of the last will and testament of William Gibson, deceased, have filed their account, which is a final account, showing a balance of $5,775.31. There was offered in evidence before me their accounting, had in August, 1913, which was an intermediate accounting, and which fully disclosed the obligations and various hens upon the property of the decedent which had arisen or been created long subsequent to the making of his will, which was dated in 1888, and had caused a very substantial shrinkage in the quantum of the estate. Accordingly, the balance above specified is totally insufficient to carry out the provisions of the will, making pecuniary bequests amounting to some $38,000.
To this account an objection was filed by Essie Kate Giles, beneficiary named in the 3d paragraph of the will, claiming that her legacy of $15,000 was a preferred legacy. The special guardian appointed for an infant legatee filed objections attacking the propriety of certain disbursements and averring that the executors had not accounted for all the assets of the estate. All the persons interested appearing on the hearings before me other than Essie Kate Giles took issue with her contention that she was entitled to a preference, and, in view
In support of the contention that the legacy to Essie Kate Giles is a preferred legacy, the following considerations are urged, which I may reframe as follows:
1. The language of the will as expressing a clear and explicit testamentary intent.
2. Proof of extraneous circumstances with regard to the legatee’s relationship to and dependency upon the testator at the time of making the will and from that time until his decease.
3. The order of the legacy in the will as illuminating the question of intent to prefer.
4. Certain cancelli or marks which upon the probate of the will were shown to have been made by the testator but found by the surrogate in admitting the will to probate to have been not so made as to effect a revocation of the particular parts sought to be canceled, but presumably to be merely evidences of a revocatory intent not actually effectuated by the making of a new will; not an act of revocation sufficient to comply with the statute;* so that the whole will was admitted to probate. A copy of the will showing these marks or cancelli and also showing notes by the testator indicating the reason for making these cancellations in certain cases, namely, that the particular legatees were dead, was offered in evidence and is submitted with this report.
Careful briefs have been submitted and I have given to the cases discussed in opposition to the claim of preference careful consideration. And in view of the fact that however small
The only effect that I can attribute to the cancelli upon the will as it was admitted to probate is merely that the testator at the time these marks were made (whenever that was) intended that these particular legacies should not operate upon his decease, but enough of these pecuniary legacies were left (assuming that the others had been held to he revoked) to present exactly the same question, namely, are they not all general pecuniary legacies, and, therefore, under the rule, must they not all abate ratably ? For it is obvious that no construction of the will, however forced, could create a specific legacy to Essie Kate Griles out of the 3d clause. Since the cancelli already decreed to have no revocatory effect throw no light upon the intent of the testator to prefer the legacy to Essie Kate Griles over the other pecuniary legatees, the considerations remain as to whether the language of the will with proof of the extraneous circumstances show such a clear and explicit intent that at all events Essie Kate Griles must be paid, and differentiates her legacy from 'the others, which, of course, come within the general rule that they are “mere bounty.” If we take the provision that the legacy shall be paid within a year alone, we must recognize the rule as having been long established, and by authority which cannot be disputed or overruled, that such a preference in point of time of payment does not affect the operation of the rule if later it transpire that there is a deficiency of assets. It may be that the executor has complied with the direction of the will and has prematurely paid, and it may be also that he failed to exact a refunding bond, but as between legatees the rule still, operates that they must abate ratably, and the whole subject is carefully covered by the late Hon. Delano C. Calvin in Trustees of Harvard College v. Quinn (3 Redf. 514). But when the legacy to Mrs. Griles is differentiated from the other legacies by this direction to pay before the statutory time
Now this intent to prefer is based upon two considerations, the one that Mrs. Giles stood to the testator in what is described in the Transfer Tax Law
But in respect to the question of support and maintenance, the testimony as to the relationship of the parties in this particular, after her marriage, becomes important, and, in my judgment, decisive. She was married from her uncle’s house
And while he had made these various cancelli on his will, showing a scrutiny of it after the time of its making, he did not in any way mark over or change the clause providing for Mrs. Giles. There is enough in the record to show that what he calls in the will his “ oft-expressed intention ” to give “her by deed a house during my lifetime ” (which proposed gift by the terms of the clause he intended should inure to her issue, thus showing that his intent to give her a home was not limited to her life, but was intended to give to her estate in fee which would pass to her heirs) was in the nature of a promised gift partially performed; that the gift was not so much a promised gift of realty as a promise of purchase, that is, to provide the funds to purchase a home, which promise was, as I say, partially performed by giving her the equivalent of the use of such a home until the actual premises should be purchased, and giving it to her on terms even more favorable than
Mr. Eedfield, in his work on Law and Practice of Surrogates’ Courts (7th ed. § 759), says that the general rule as to legacies which the testator intended should be paid in full and at all events is that they are not subject to abatement with general legacies. This is always true when these legacies are charged, as he remarked in the text, upon a particular fund, or upon real estate; but where this is not the case, it turns upon a careful consideration of all the material provisions of the will and upon “Extrinsic circumstances which bear upon the question of intent. ”
Essie Kate G-iles was the only person who sustained to this bachelor testator in his lifetime the relation of child. She was practically adopted by him; she lived with him; she was dependent upon him; she married from his house. After her marriage he provided her with a home, and promised to provide her a permanent home. He intended to carry this promise into effect and repeated attempts were made to do so. He stated solemnly in his will, made shortly after her marriage, that he had oft expressed his intention to provide her a home. He amplified this intention by indicating that, if she should not survive him, her issue would have what would have provided her a home. He set a pecuniary value on the gift which
I have prepared a report with appropriate findings and conclusions to carry out this view of the facts.
See 2 R. S. 64, § 43; now Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18), § 34.— [Rep.
See Code Civ. Proc. § 3721; now Code Civ. Proc. § 2688, as amd. by Laws of 1914, chap. 443.— [Rep.
See Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908), § 221, as amd.; now Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), § 221, as amd. by Laws of 1910, chaps. 600, 706; Id. § 221a, added by Laws of 1911, chap. 732.— [Rep.