13 N.Y.S. 261 | N.Y. Sur. Ct. | 1891
Upon the accounting of the executors, construction of the will is asked by one of them, and by the special guardian appointed to represent Samuel D. Van Beuren, a person of unsound mind, and one of the annuitants under the will. By the fourth paragraph of the will two bonds and mortgages, aggregating $8,000, are bequeathed to the executors in trust, “to set apart and hold the same, to receive the interest thereon, and pay the same over as it accrues to my brother Samuel D. Van Beuren, of Ulster county, New York, for and during his natural life.” By the fifth paragraph of the will the trustees are given all the rest, residue, and remainder of the estate of every description,—the real estate to be sold either at public or private sale, as they may deem best; and, after paying the debts, funeral expenses and small gifts, the trustees are directed to hold the same in trust, “to set apart, invest, and hold the proceeds thereof, to receive the interest thereon as it accrues, and pay over to my brother Simeon B. Van Beuren, of New York city, during his natural life, the sum of $600 a year out of the interest so received.” Ppon the death of Simeon, a bequest to the testator’s nephew John of $2,000 < is made upon the happening of a certain contingency. Three other legacies are directed to be paid from this residuum, and the balance to go to Theodore, a nephew of the testator, and his heirs, “to his and their own use and benefit forever.” By the sixth paragraph of the will it is directed that “all legacy and succession taxes and expenses, which may be payable in respect of the bequests and devises in this will contained, I direct to be paid out of the interest from the proceeds of the real estate, so that each annuitant receive the whole of the income derived from the principal sum held in trust for his or her benefit; and, should any of the legacies herein lapse, the same shall be distributed among my surviving nephews and nieces, (excepting Theodore,) share and share alike. Those leaving lawful issue them surviving, such issue shall receive the share the parent would have taken if living.” In the fourth paragraph of the codicil it is ordered and directed that paragraph fifth of the will be amended so as to read as follows: “Fifth. I give, devise, and bequeath to my trustees all the rest, residue, and remainder of my estate, real
It is claimed by Executor Lockwood and the special guardian representing the brother of unsound mind that, by the sixth clause of the will, the testator intended that the annuitants provided for in the will should receive the full amounts of their annuities free and clear of any charge or expense of administration whatever. On the other hand, it is contended in behalf of one of the residuary legatees that the intention to this effect which certainly existed at the time of the execution of the will was nullified and destroyed by the terms of the codicil above set forth. The provision of the sixth paragraph of the will was not revoked expressly and in words by the codicil. The question here seems to me to be of easy solution. As was said by Denio, J., in Pierrepont v. Edwards, 25 N. Y. 131: “The authorities upon the question are very numerous * * * that no positive rule of ready application to every case can be laid down, but that each case will depend upon a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the testator’s family and estate, which may be fairly brought to bear upon the question of intent. The leading principle of the cases is that when the testator bequeaths a sum of money, or, which is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular way, or out of a particular fund. ” While there were two justices dissenting to this opinion, there was no dissent to the proposition above set forth. There being no express revocation of the sixth paragraph of the will, we must be guided by the terms and expressions of the entire paper, aided, if possible, by material extrinsic facts and circumstances, if there be any. Concerning the annuity to Samuel D. Van Beuren, there-is much to be said which would indicate an ever-present intention in the testator to provide for him to the full extent of the will. As suggested by the special guardian, the testator was unmarried, and worth upwards of $200,000. He made his two nephews his residuary legatees. Desiring to provide for his brother Samuel, he gave him an annuity on $8,000. It must be held, in view of the sixth paragraph of the will, that the testator realized there might be charges and expenses connected with the administration of this trust, and intended to relieve this legacy therefrom. To my mind the codicil evidences no change in the intention of the testator that the annuities should be paid without deduction; in other words, they are demonstrative legacies. The fifth and sixth paragraphs of the will indicate that, after provision is made for the