106 Misc. 133 | N.Y. Sur. Ct. | 1919
I may notice that the petition contains no allegation that all persons are of full age and all are of sound mind. This should he corrected.
Paragraph second of the will sub judice reads as follows: “I give and bequeath to my faithful servant, Kate O’Brien, should she survive me, the sum of ten thousand dollars, it being my desire that said sum of ten thousand dollars be paid to said Kate O’Brien in full, and that any transfer, inheritance or other tax which may be imposed by law upon said bequest shall be paid by my executors héreinafter named out of the residue of my estate.
“ I also give and bequeath to said Kate O’Brien all the furniture, rugs, pictures and other contents of my home of which I may die possessed (except as hereinafter specifically bequeathed), together with all bed linen, table linen, woolen blankets, eider down quilts, china and glassware, silverware (except the antique sugar bowl hereinafter bequeathed to Louise Marsh), all of my clothing, my bronze clock and ornaments, a pair of Lemoge (sic) vases, decorated with apple blossoms; all bric-a-brac (not otherwise hereinafter specifically bequeathed), one bisque figure ‘ Joy,’ one pair of pink and white Dresden candlesticks, one wrought iron lamp, with shade, Japanese vase lamp and shade, one large and one small ebony cabinet, three small mahogany tables and all other personal property contained in my home at the time of my decease, and all jewelry not hereinafter otherwise specifically bequeathed.” Four of the specific legacies mentioned
The executrix now submits for our determination whether those specific legacies are to be paid to Kate O’Brien under the second paragraph, or to the residuary legatees who are mentioned in paragraph seventh. Some of the latter persons have appeared herein, and claim that the specific legacies have lapsed and pass into the residuary estate. Kate O’Brien has not appeared. The executrix, however, believes that Kate O’Brien may be entitled to claim the specific legacies under paragraph second of the will.
Two considerations preclude my adoption of the suggestion of the petitioning executrix. No evidence is offered in this proceeding to show that the articles in dispute were contained in the home of the testatrix at the time of her death. Paragraph second gives to Kate O’Brien property of that limited description. But, even if a broader meaning is to be placed upon the words “ other contents of my home ” and “ contained in my home ” there is a further reason for deciding against the contention of the executrix. When the testatrix excluded from the gift to Kate 0 ’Brien the articles specifically bequeathed in the succeeding paragraphs, she did not intend that paragraph second should have the effect of a residuary clause. Paragraph seventh contains a general residuary clause sufficiently comprehensive to embrace lapsed legacies. Paragraph second indicates an intention to give only the property therein described to Kate O’Brien after bequeathing what was specifically bequeathed in later paragraphs. No intention is manifested that any other property should belong to Kate 0 ’Brien. She is made a specific legatee just as much as those named in the fifth paragraph. A specific legatee can never take
A will in many respects like this and presenting an analogous question for construction was passed upon by me in Matter of Kathan, 90 Misc. Rep. 540; It must be held in this case, as it was in that case, that the lapsed legacies fall into the residuary.
The other question of construction relates to paragraph seventh of the will, which is as follows: “ I give, devise and bequeath all the rest, residue and remainder of all my estate, real, personal and mixed, to my late husband’s nephews, nieces and grandniece, as follows, viz.: To Julia Woodruff and her daughter, Dora Woodruff, Alice Parish, Emma Parkhurst, Newton Perkins, Mary A. Lewis, Florence Moliere and Victor Moliere to be divided equally between them, share and share alike. My husband’s nephew, William T. Perkins, having received from my husband in his lifetime two thousand dollars, is, therefore, not included among my residuary legatees.”
Three of the residuary legatees predeceased the testatrix and the question made is whether the surviving residuary legatees take the entire residuary estate . or whether an intestacy results as to the shares of the three who predeceased the testatrix. Either it must be held that there is a lapse of part of the residuary estate, or that the gifts to those mentioned in paragraph seventh are gifts to them as a class. Antithetical definitions of gifts to a class and gifts to individuals are succinctly and clearly set forth in Matter of King, 200 N. Y. 189. It follows therefrom that if the testatrix intended that the named residuary legatees should divide the estate, the gifts must be construed as a gift to them individually, but if only those should take who should survive her, that then the gifts were intended as gifts to a class. The presumption, in the
The will must be construed to provide that the shares of the residuary legatees predeceasing the testatrix lapsed, and be distributed as intestate property amongst the next of kin of the testatrix. As the testatrix died without leaving any of her own next of kin her surviving, and as the property came to her from her husband, the surviving next of Mn of the husband are to be taken as her next of kin by provision of law. Decedent Estate Law, § 98, subd. 16.
Decreed accordingly.