2 Mills Surr. 73 | N.Y. Sur. Ct. | 1900
— Tbe testator, after the direction for the payment of funeral expenses, debts, and for the erection of a fence around cemetery plot, provides in his will as follows:
“ To Stella Krause and Charles Krause the sum of two hundred dollars each as directed to be paid by my mother’s will with interest from my death unless I shall make a special deposit for them of said moneys before my death in the Sing Sing Savings Bank.
“ To my sister, Mary J. Elynn, the sum of one thousand dollars.
“ To my sister, Sarah Skerritt, the sum of two thousand dollars.
“ To George W. Whiting the sum of five hundred dollars, my brother.
“ I order and direct my executors to pay whatever mortgages or liens there may be against the house and lot belonging to Mary Whiting, wife of my brother Edwin T. Whiting, situate in Highland Avenue in the Village of Sing Sing, which I hear is about sixteen or eighteen hundred dollars, and take and file a satisfaction of said liens or mortgages.
“ To Stella Krause the sum of two thousand five hundred dollars when she becomes twenty-five years of age, the same to be invested for her and the income paid to her for her support and maintenance or part of said principal may be applied for that purpose if necessary.
“To Charles Krause the sum of one thousand dollars to be paid to him when he is of the age of twenty-five years, the same to be invested and the income of the same or any part of the principal to be applied to his care and support, and should either Stella or Charles Krause die before twenty-five years of age his or her legacy or both shall be paid equally to my sisters and brothers or their heirs-at-law.
*75 “ To Emma Elynn, my niece, tbe sum of five hundred dollars at twenty-one years of age.
“ To Lizzie Elynn, my niece, the sum of one thousand dollars at twenty-one years of age, the aforesaid moneys to be invested for the said Emma and Lizzie Elynn and income applied for their care or support or part of the principal if necessary.
“ It is my will that none of my estate or moneys shall go vest in the children of my brother, James Whiting, deceased, whatever, notwithstanding the former clauses of this will.
“ I also give the option to my brother Edwin of having a mortgage paid off on his wife’s house or of paying the said sum to his wife, Mary Whiting, of eighteen hundred dollars.
“In the event of my property not aggregating a sufficient sum to pay said legacies aforesaid they are to share pro raía in the increase or decrease of the same.
“ Also any one of the said beneficiaries under this will who will contest the same his or her share to go to the others, share and share alike.”
Sarah Skerritt, one of the legatees above named, died prior to the testator, and the legacy to her consequently lapsed.
The accounts show that the testator left more than enough property to pay all the legacies, including that to Sarah Sker-ritt.
The question is, how this surplus, including the amount of the lapsed legacy, which would pass under the residuary clause, is to be distributed. Is there a residuary clause here? The language of the testator is, “ In the event of my property not aggregating a sufficient sum to pay said legacies aforesaid they are to share pro rata in the increase or decrease of the same.” The draughtsman of this will was very unfortunate in the use of words and modes of expression. The grammatical construction must certainly be discarded in arriving\,at the intention of this testator, and it is our duty to do so in order that his intent may be accomplished, if it is possible, without doing violence
The question next to be determined is, whether Stella Krause and Charles Krause, who are given the sum of $200 each, are to share in the residuary estate by reason of such bequests. I think not. These sums of $200 each are not paid by reason of the testator’s bounty, but owing to some direction of testator’s mother, and are apparently a legal or moral debt of the testator. I do not think from the language used that he regarded them as legatees who were to benefit under the residuary clause.
We now come to the provision in favor of Mary Whiting. This is not the ordinary general legacy. It might be said it is more in the nature of a specific or demonstrative legacy, while strictly neither. It is a direction to pay a debt of another, and to cause a lien to be satisfied of record; nevertheless, the option is given to testator’s brother Edwin to convert the direction to pay the mortgage debt into a general legacy of $1,800. I should be inclined to the view that, were it not for this option, Mary Whiting could not be regarded as a legatee, entitled to take under the residuary clause, for the reason that the direction to discharge a mortgage and cause its cancellation would have to be regarded as a preferred gift, in order to effectuate
One further question remains to be considered. Tbe legacy of $2,000 to Sarah Skerritt, as has been said, becomes lapsed, and under tbe authorities passes under tbe residuary clause. Now, as we have construed tbe residuary clause to make tbe general legatees tbe residuary legatees, in proportion to tbe amount of their legacies, we have Sarah Skerritt as one of tbe residuary legatees; and while tbe lapsed legacy to her passes under tbe residuary clause, her share in tbe residuary estate cannot so pass. It is a residue of a residue, and as to this it must be adjudged that tbe testator died intestate. Kerr v. Dougherty, 79 N. Y. 327; Booth v. Baptist Church, 126 id. 245; Beekman v. Bonsor, 23 id. 312; Floyd v. Carow, 88 id. 570.
Tbe estate must, therefore, be distributed upon tre following plan: Take tbe aggregate of tbe general legacies, $10,300, tbe surplus would then be divided in tbe following proportions:
Mary J. Flynn. 10/103
George W. Whiting.*. . 5/103
Mary Whiting. 18/103
Stella Krause .'.. 25/103
Charles Krause . 10/103
*79 Emma Elynn. 5/103
Lizzie Elynn . 10/103
And to tbe next of bin of tbe testator, being tbe residue of tbe residue wbieb would have gone to Sarah Skerritt . 20/103
Decreed accordingly.
