133 N.Y.S. 122 | N.Y. App. Div. | 1911
The main question to be determined turns upon the construction to be put upon thé will of the testator, and is presented by the appeal taken by his widow — the contention being: (1) That the gift of the insurance moneys is a specific legacy; (2) that under the terms of the will there was an equitable conversion of the testator’s real estate into money as of the date of his death; and (3) that the provisions in the will for her benefit were in lieu of dower. If the contention be correct, then the decree of the Surrogate’s Court is wrong, because she is entitled, in that case, to have the debts of the testator — there being sufficient for that purpose — paid out of the proceeds of the other property, real and personal.
First. I am of the opinion that the bequest of the insurance moneys was a specific legacy. The determination of whether or not a legacy is -specific depends upon the intent of the testator, which must be determined from the language used in the bequest when the same is read and construed in the light
There are numerous .authorities where it has been held that a legacy was specific in which the intent of the testator that it should be so was certainly no clearer than in the present case. Thus, a bequest of the balance or surplus due on a policy of life insurance after the satisfaction of a debt to secure which it had been assigned (Leonard v. Harney, 173 N. Y. 352); a bequest to pay a certain sum out of a bank deposit in the name of a daughter (Crawford v. McCarthy, 159 id. 514); a bequest of “ all my right, interest and property in thirty shares which I own in the Bank of the United States” (Walton v. Walton, 7 Johns. Ch. 258); a bequest of ‘' the balance of my stock as per my stock book” (Trustees, etc., v. Tufts, 151 Mass. 76); a bequest of “ whatever sum might be on deposit in Provident Savings
The amount thus received was h> be for her- sole benefit. She was to have this irrespective of the disposition made of the balance of his property. This was just as specific as the bequest to her of his horses, carriages, etc.
Second. After the gift of the insurance moneys, the horses, carriages, etc., the testator gave, devised and bequeathed to. his executors, or such of them as might qualify, all the rest, residue' and remainder of his estate, both real and personal, in trust “ to invest the same and keep it invested in such securities as they may approve ” and pay the income derived therefrom to his wife during her life, and upon her death to pay over and transfer the same and all accumulations thereon to seventeen persons, including collateral relatives, godchildren and servants, in amounts varying from $500 to $75,000. As to the amounts thus given, he directed his trustees “ to pay over the above mentioned legacies in full and without deduction for commissions * * * transfer or succession tax * * *.” By this provision the testator, as it seems to me, clearly intended that his real estate should, immediately upon his death, be treated as personal property, because it is only in this way that his trustees could do what he directed. They were to invest and keep the same invested in such securities as they might approve and pay over to' his wife, what ? — not rents,. issues and profits derived from real estate, but the income derived from the investments. The amount given to the sevi enteen different persons was not an interest in land, but a specified interest in “ the principal so held in trust,” that is, money or securities in which the same had been invested. His words are, “to pay over the above mentioned legacies in full.”
In Asche v. Asche (113 N. Y. 232) the court said: “The necessity of a conversion to accomplish such purposes is equivalent to an imperative direction to convert, and effects an equitable conversion of the property.”
In M’Cready v. Metropolitan Life Insurance Co. (83 Hun, 531; affd., 148 N. Y. 761), a case in some respects quite similar
It is also to be observed that in what is termed the residuary clause the trustees are directed “to-pay over and transfer” — words peculiarly applicable to the distribution of personal property—which emphasizes what has already been said, that it was the intent of the testator that immediately' upon his death his real estate should be converted into money. In this provision of his will he sought to provide not only for lapsed legacies, but also for any surplus derived from the sale of the real and personal property after the bequests made by him had been paid or that his wife might possibly outlive all of the legatees, a contingency quite improbable but not impossible.
Third. The provisions in the will for the benefit of the widow, while not so expressed in words, were intended by the testator to be in lieu of dower. This seems necessarily to follow from the fact that such provisions, if not antagonistic to are certainly inconsistent with a claim .in this respect on her part. After making the specific bequests to her he gave “ all the rest, residue and remainder” of Shis property, “real and personal,” to his trustees or such of them as might qualify and act as such for the purpose of having them invest the proceeds and keep the same invested in such securities as they might approve and collect the income derived therefrom and pay the same to his widow during her life, when the same were to be disposed of as directed.
If it be true, as we' have heretofore seen, that the trustees were bound to sell the real estate for the purpose of providing the principal from which the income was to be paid, then certainly he did not intend her to have dower in • such land. She could not have both.' She could not insist upon the sale of the
“It has been held that a bequest in lieu of dower, and the acceptance of same, amounts to a matter of contract and purchase; that the wife is to be paid the bequest in preference to other legacies and without abatement, the debts being first paid.” (Flynn v. McDermott, 183 N. Y. 62; Dunning v. Dunning, 82 Hun, 462; affd. on opinion below, 147 N. Y. 686.)
What the vice-chancellor said in Isenhart v. Brown (1 Edw. Ch. 411) is quite applicable here. He said: “I am bound to regard the law as settled that, under circumstances like the present, a widow is entitled, after payment of the debts, to the whole provision which the husband chooses to make for her by his will, in lieu of dower, in preference to all other legatees, who are consequently to be postponed, where there is a deficiency of assets. Of course, the debts must be paid before she can be entitled even to specific legacies, but these debts may be paid out of other parts of the estate in exoneration of what is specifically bequeathed or devised. In the. present instance the testator has authorized his real estate to be sold by his executors, and has disposed of the whole of it as personal estate. There is no difficulty, therefore, in applying the proceeds of the real estate, as well as the proceeds of the personal property not specifically bequeathed, to the payment of the debts.”
For the reasons above stated, it seems to me, the real estate of the testator must be deemed as converted into money as of
In reaching this conclusion I have not considered the evidence taken by the referee, showing or tending to show the receipt by him from his wife of the money derived by her from her father’s estate. This evidence,, however, might properly be considered as showing at least a moral obligation resting upon the testator to make ample provisions for the benefit of his wife. I, however, prefer to rest my conclusion upon the language used in the will itself. It is a general rule that provisions in a will for the benefit of a wife should be construed liberally in her favor (Moffett v. Elmendorf, 152 N. Y. 487), and such rule should be here applied.
If the foregoing views be correct, then it is unnecessary to consider or. pass upon the questions presented by the other appeals.
It follows that the decree of the Surrogate’s Court appealed from must be reversed and the matter sent back, with directions to enter a decree in accordance with the views expressed in this opinion, with costs in this court to all parties filing separate briefs, payable out of the estate.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Decree reversed and proceeding remitted to surrogate, as directed in opinion, with costs to all parties appearing, payable out of the estate.