83 N.Y.S. 751 | N.Y. App. Div. | 1903
This is a suit for the construction of the will of John A. McManus. The plaintiff is the executor under the will; the defendants comprise the widow and next of kin of the testator, as well as Ella Agnes Svenson, formerly Ella A. McManus, a legatee under the will. By the 2d article of the will the testator gave a life estate in his dwelling house, So. 77 St. Marks avenue, Brooklyn, to his wife, and, in the event of the death or remarriage of his wife, a life estate in the same property to his adopted daughter, Ella Agnes McManus (now Svenson). In this same article provision is made for the payment of the taxes on the St. Marks avenue property in these words: “ I do hereby order and direct that my executors pay the taxes, assessments and repairs on said house so long as it shall be occupied by my wife or adopted daughter.” In the 4th article of the will the testator bequeaths to his adopted daughter already mentioned the ■sum of $5,000, to be paid to her as soon after his decease as possible.
The principal questions litigated upon the trial were (1) whether the payment of the taxes, assessments and repairs on the St. Marks avenue property, as directed by the 2d article of the will, constituted a specific charge and lien upon the real estate of the testator, and whether a trust for that purpose was imposed upon the executor ; and (2) whether the legacy of $5,000 bequeathed to the adopted daughter was a specific charge and lien upon the real estate of the testator. The evidence sustained the finding made by the learned trial judge, to the effect that the testator, at the time of executing his will, knew that his personal property was insufficient to pay the legacies bequeathed in the 2d and 4th articles of the will. In view of the proof on this subject we concur in the conclusion expressed in the opinion rendered at Special Term, to the effect that the legacies in question are chargeable upon the real estate of the testator; and the reasons which led the learned judge below to reach that '
Present — Goodrich, P. J., Bartlett, Woodward, Hirsohberqánd Jemes, JJ.
Judgment affirmed, with costs.
The following is the opinion delivered at the Special Term:
Wilmdt M. Smith, J. :
I am satisfied that if the testator had personal estate of any appreciable amount at the time of the execution of his will, it was represented by the accounts in the various savings banks opened by him in his name in trust for his wife, his adopted daughter and his sisters. The only reasonable conclusion that I can arrive-at from the evidence in the case is that the testator intended when the accounts were opened to create a trust for the benefit of the beneficiaries named therein; that he believed'that at any time during his lifetime he had the right to revoke-the trust and change the disposition of moneys as he saw fit, and that all moneys, standing in trust at his death should belong to the beneficiaries named in the various accounts. No other theory harmonizes all the facts in the case; and the parties to the action seem to have adopted that theory in part, for all of the trust accounts in existence at the time of the testator’s death have been closed out by the beneficiaries and the money appropriated to their own use without objection on the part of the executors. If the accounts in the savings banks belonged to the estate of the testator and the executors obtained possession of the same, ■ there would undoubtedly be sufficient personal property to satisfy the legacies. Without these accounts the testator must have known when he made his will that, his personal estate was insufficient to pay the legacies. It is manifest that he intended that these provisions for his wife and daughter, so carefully and thoughtfully made, should become effective.' He owed his first duty to them. Intending that these legacies should be satisfied and having reason to believe that his personal estate would be insufficient for that purpose the result follows, in accordance with the law established in this State, that the legacies should be charged upon the real estate. (Hoyt v. Hoyt, 85 N. Y. 142 ; McCorn v. McCorn 100 id. 511.)
Judgment directed accordingly.
