| New York Court of Chancery | Sep 29, 1903
This hill, which involves the construction of a will, discloses the following material facts: Philander S. Pierson, by his will, directed (1) the payment of his debts, (2) bequeathed to his wife, Mary S. Pierson, his household furniture, horses, wagons and riding equipments, with a direction that no inventory or accounting of these should be made; (3) devised his homestead property, with' certain other lands, to his wife for life, with remainder over to other persons. The fourth item, one of the items now in question, is as follows:
“Fourth. I give and bequeath to my wife aforesaid the sum of Fifteen Thousand Dollars during her natural life, with the privilege of selecting that amount from any securities held by me at my decease, at the par value of the same.”
By the fifth item he bequeathed to Emma L. Harrison $5,000, and gave to her the second choice of selection from any securities held at his decease. Pour other legacies, three of $1,000 each, and one of $2,000, are given by the sixth, seventh and eighth clauses, and by the ninth clause the wife was made residuary legatee, as follows:
“Ninth. The residue and remainder of my estate I give and bequeath to my wife aforesaid, but if at my decease there shall not be sufficient property, together with the proceeds of sale of any and all real estate not otherwise disposed of by this my last will, to pay all the foregoing bequests, then and in that case I order the bequests to my wife and Emma L. Harrison to be paid first and the residue and remainder to be divided pro rata according to the- several bequests made.”
Testator’s wife was appointed sole executor of the -will, with the power to sell real estate. She received the securities left by the testator, selected the $15,000 from them, retained these during her life and afterwards died, having made a will, of which the defendant is executor. By this will she disposed of
The bequest of $15,000 to the wife for life left the sum undisposed of after her death. The ninth item disposed of “residue and remainder” of testator’s estate, and these words, in their ordinary and natural import, include the interest on the $15,000, undisposed of by the fourth clause. Had this “residue and remainder” been given to any person other than the wife, no possible question could have been raised as to the residuary legatee being entitled to the sum after the wife’s death. The mere fact that the residuary legatee is also the legatee for life is not of itself sufficient to restrict this ordinary operation of the words. Nor in the form of the bequest to the wife for life is there anything to exclude the operation of the residuary bequest. In Clark's Executors v. Richards, 6 C. E. Gr. 361 (Errors and Appeals, 1869), it was held that a gift of the interest of a bond and mortgage and of the dividends of stock to testator’s daughter, by bequests which were construed to be bequests for life, with a provision for using the principal for her support, if necessary, did not have the effect of restricting the operation of a general residuary clause, which divided the principal between the life tenant and another as residuary legatee. Both the life estate and residuary legacies were held to be operative. This is also the rule of construction applied where there is a devise for life of real estate, and a subsequent residuary devise in fee to the tenant for life, either alone or in connection with others, and in such case the mere fact that there is prior devise
Complainant has no claim to this fund in question, and the demurrer must be sustained.