| N.Y. Sup. Ct. | Dec 28, 1891
This matter comes here by appeal from an accounting before the surrogate. There are three separate appeals, and live separate respondents. Ida A. Vedder appeals, and claims interest on a legacy of $8,000 left to her. Willard K. Brooks and others appeal. They claim certain interests in real estate as heirs at law, not next of kin, which estate has been sold. Simon P. Mann, executor of the widow, (who afterwards married one Harts-horn,) and who was entitled to income, appeals, claiming the benefit of a certain increase insecurities, and also as to the application of the costs. Some of the respondents oppose all of these appeals, others all but that of Willard IC. Brooks and others.
First, as to the appeal of Ida S. Vedder. The deceased died in 1879. By his will, executed July 25, 1867, he gave his wife a life-estate, and after her death certain legacies, among them—Fourth, to Fanny A. Mann, $5,000; ninth, to Martha Mann, $3,000; with a contingent bequest to others. By a codicil, executed June 5, 1875, he canceled these two bequests, describing them, and then declared: “And in place and stead thereof I give and bequeath the sum of eight thousand dollars, being the sum of said two former bequests, to my daughter Ida A. Vedder.” On the 11th of September, 1875, the testator and his wife executed an indenture with the American Female Guardian Society, by virtue of which said Ida was apprenticed to them till she was 18. It was stated, however, therein, that it was intended that said Ida should be taken, as far as practicable, into the family as an adopted child. She was then 4 years old. She was treated as an adopted child during the life of the testator. From his death down to the death of his widow, June 8, 1890, Ida was educated and supported by the widow as a daughter, and in correspondence with the situation in life of the said widow. It is not shown that Ida had any estate of her own except this legacy. She now claims that it is presumed that the legacy was given for maintenance, and therefore that it draws interest from testator’s death. The question in such cases is, what did the testator intend, ascertained b/what he said and the surrounding circumstances ? When courts say that the testator must have been presumed to mean what he did not say, they are groping in the dark, and making, instead of construing, a will. This testator need not have given any legacy to Ida. He was at liberty, also, to say when the legacy which he did give should be paid. He was not obliged to say that she should have the interest meantime. And he did not say so. On the contrary, he gave all the income and profits of his estate to his widow, excepting such property as he had previously bequeathed to her absolutely. Therefore he could not have intended that any of the income should be paid to Ida for maintenance; for, if interest on the legacy was to be paid to her for maintenance, it would have to be paid every year. It would be absurd to say that, for the purpose of maintenance, an accumulation of interest should be paid to Ida after the death of the widow. But the interest on the legacy could not be paid to Ida every, year, because all the interest on the whole estate was to be paid to the widow. It is practically the same as
Let us suppose that the testator had given the income of his whole estate to his widow for life, and after her death the whole estate to Ida. According to the argument urged on us, as the testator stood in the place of a parent to Ida, the legacy was for maintenance. Therefore she must have the interest on the bequest from his death. Hence the widow would have no income whatever. That is but pressing the rule contended for to its legitimate result. If Ida can deprive the widow of a part, why not of the whole income? For it is the right to interest, not to principal, which is asserted. Again, by the will two legacies were to be given to testator’s wife’s sisters, amounting to $8,000. Certainly these legacies did not carry interest, even by the most violent presumption which could be indulged in; and therefore unquestionably there was under the will no deduction to be made from the income of the widow to pay interest on these legacies. The codicil only cancels these legacies, and gives “the sum of said two former bequests” to Ida. Hence she would not receive any more than those legacies, and, clearly, would not be entitled to interest. Again, although the codicil is dated a short time prior to the indenture of adoption, yet the codicil speaks of Ida as “my adopted daughter. ” It is reasonable to suppose that the arrangement carried out by the indenture had already been made, at least verbally; and, at any rate, long before the will and codicil took effect, the indenture of nominal apprenticeship, but practical adoption, had been executed by the testator, and by his wife. He had a right, then, to expect that Ida, who must have been about 8 at his death, would, at least till she was 18, the age mentioned in the indenture, be cared for by the widow, who was herself a party to the indenture. Van Bramer v. Hoffman, 2 Johns. Cas. 200. Such expectations, if he had them, were fully realized. Ida must have been 19 at the death of the widow, and up to that time she had been maintained and educated as a daughter. If a father gives his property to his widow for her life, with remainder to his children, it must be supposed that the children would be supported by lhe widow; and that is the thought which the testator-must have had in this case.
These views leave us no reason to doubt what the testator in fact intended. It is urged, however, on behalf of Ida, that an established rule of construction compels us to disregard his plain intention, and to assume that he meant something else. As is said in Thorn v. Garner, 113 N. Y. at 202, 21 N. E. Rep. 149, there are “certain facts which the courts have agreed are equivalent to an express direction * * * to pay interest, because from such facts the courts will presume an intention * * * to have it paid. ” In Bradner v. Faulkner, 12 N.Y. 472" court="NY" date_filed="1855-06-05" href="https://app.midpage.ai/document/bradner-v--faulkner-3631093?utm_source=webapp" opinion_id="3631093">12 N. Y. 472, it was said that, in the absence of express direction, the intent of the testator to authorize the payment of interest should clearly appear. The case of Cooke v. Meeker, 36 N.Y. 15" court="NY" date_filed="1867-01-05" href="https://app.midpage.ai/document/cooke-v--meeker-3626978?utm_source=webapp" opinion_id="3626978">36 N. Y. 15, held that where the testator gave a sum of money to a trustee in trust to invest in bond and mortgage, and apply the income to the use of his granddaughter during her natural life, the granddaughter was entitled to the interest from the testator’s death. That is a case quite different from the present. The legacy was expressly for use during life. The opinion contains numerous English cases on this point. In Brown v. Knapps, 79 N.Y. 136" court="NY" date_filed="1879-12-02" href="https://app.midpage.ai/document/brown-v--knapp-3603255?utm_source=webapp" opinion_id="3603255">79 N. Y. 136,the will was as follows: “I give, devise, and bequeath to my grandson * * * the sum of $3,000, and direct my executor * * * to pay to him the same when he shall attain the age of twenty-one years.” There was a gift over if he should die before 21. The
The next question we consider is that presented by the executor of the widow. The personal securities held by the executors of the testator were sold by them after the death of the widow. A premium of $8,659.63 was received therefor in excess of the premium at which securities had been charged in the previous decree of 1882. Her executors plaim this as income to which the widow was entitled. The will rather tautologically gives the wife “the income of all my other estate, both real and personal;” anil again, in the same item, “the profits of all my other estate, both real and personal.” But there is no difference in the meaning of the words. In the next item he gives, after his wife’s death, “the income and profits” of $10,000 to Anna Van Geysling during her life, using thus the same language. Then he disposes of the whole of his estate. This use of the words “income and profits” is only due to the lawyer-like fondness for using several words where one is sufficient. If the executors had not sold the real estate, and if the real estate had increased in value during the widow’s life, she would not have been entitled to the increase. So with personal property. This question is carefully discussed and fully settled in Re Gerry, 103 N.Y. 445" court="NY" date_filed="1886-11-23" href="https://app.midpage.ai/document/matter-of-final-accounting-of-gerry-3595816?utm_source=webapp" opinion_id="3595816">103 N. Y. 445, 9 N. E. Rep. 235. We think that the use of the word “profits” in these items of the will has no additional meaning to' the words construed in that ease. The decision of the surrogate was correct.
The remaining question is that on the appeal of Willard E. Brooks and others, grandnephews and a grandniece of the testator. It has been held in an action in this court that the gifts, after the death of the widow, to the Tróy Orphan Asylum and the Troy Conference, under the statutes of the state, were void, so far as they exceed one-half the testator’s estate; and that as to such portion the deceased died intestate, except as to the widow’s life-estate. Laws 1860, c. 360. Ho dispute is made as to the law in this respect. These appellants claim nothing as to the personal estate, (2 Rev. St. marg. p. 96, § 75,) but they claim as heirs at law their share of the real, (3 Rev. St. marg. p. 752, §§ 8, 9.) The personal estate was enough to pay all the legacies, including the half to which the aforesaid corporations are entitled. There was in the will an authority, hut nota direction, to sell real estate. Hor is the purpose of such authority expressed in the will. It could only be for the purposes of the will. Wood v. Cone, 7 Paige Ch., 471" court="None" date_filed="1839-04-02" href="https://app.midpage.ai/document/wood-v-cone-5548408?utm_source=webapp" opinion_id="5548408">7 Paige, 471. There was no purpose of the will for which such sale was needed. There was therefore no conversion of the real into personal property. A discretionary power produces no such effect. White v. Howard, 46 N. Y. 162; Chamberlain v. Chamberlain, 43 N. Y. 431; Chamberlain v. Taylor, 105 N.Y. 185" court="NY" date_filed="1887-04-19" href="https://app.midpage.ai/document/chamberlain-v--taylor-3588121?utm_source=webapp" opinion_id="3588121">105 N. Y. 185, 11 N. E. Rep. 625. The real estate, (subject to the life-interest therein of the widow,) so far as it was undisposed of, vested at
Some question is made as to the discretion of the surrogate in charging executors’ fees and expenses of accounting. He directed that these items should not be charged against the portion of the estate in which the Troy Orphan Asylum and the Troy Conference were entitled to share, but against that portion in which the widow and next of kin are entitled to share. As we have taken the view that the avails of the real estate go to the next of kin, there must be a modification of the surrogate’s decree after an ascertainment by him of the amount of those avails. This may render a new adjustment of costs necessary, since the heirs have not been heard upon that point. We think it best, therefore, to say nothing upon the question of costs. The decree must be affirmed, except so far as it adjudges that the avails of the real