28 A.D. 548 | N.Y. App. Div. | 1898
This action is brought by the plaintiff as a legatee to obtain a construction of the will of Sarah S. Hunting, of which the defendants are the executors.
The will, which was made on Hovember 28, 1895, contains ten numbered sections or paragraphs. By the 1st, 2d, 3d, 4th and 5th sections the testatrix gives specific legacies or makes specific devises to the persons respectively named therein.
The 6th section reads as follows:
“Sixth. I give, bequeath and devise unto my executors hereinafter named the farm in .Stanford, which I now own, containing about 192 acres, in trust, for the following uses and purposes, and none other, viz., to sell and dispose of the same at any time within ten years after my decease, at their discretion, entire or in parcels, for cash or on credit, at public or private sale, as they may deem best (and until sold to rent or use the same for the benefit of my estate), giving to my said executors, or to the survivor of them, full power and authority to bargain, contract and convey the same to the purchaser or purchasers thereof as fully and entirely as I might do if living, and from the proceeds thereof, when sold, to pay, first, to the trustees or treasurer of the Island Cemetery, in Amenia, N. Y., the sum of one hundred dollars as a fund, the interest of which shall be used each year in caring for the plot in said cemetery, owned by my sister and myself, in which our families may be buried; second, the sum of two thousand dollars, or so much thereof as they may deem necessary, for a monument and smaller marking stones and the general shaping and laying out of said cemetery plot, to be'retained by said executors and expended under their own general direction and supervision, the remainder of said two thousand dollars, if any, to revert to this farm fund; third, to pay over to the trustees of the Methodist Episcopal Church at Bangall, U. Y., the sum of one thousand dollars to be kept by said trustees as a fund, the net annual income of which shall be. applied each year toward the pay
The 7th section contains two legacies, one of $400 and one- of $500 to two persons named therein. Then follows the 8th section in these words:
“ Eighth. It is my will and express direction that if the proceeds of my said farm -and my other estate should prove insufficient to pay all the legacies hereinbefore given in full, then, and in that case, the legacies given in and by the first five sections of this Will, and in and by the first, second, third and fourth clauses of the sixth section of this Will, shall be paid or set aside and retained in full, and the remaining legacies shall be proportionally abated.”
The 9th section disjioses -of the residue and remainder of the estate of the testatrix, and the 10th section merely dispenses with the giving of any bond by the executors who are named.in the next and concluding paragraph of the will.
Upon the trial proof was given showing that the farm mentioned
The plaintiff contends.that it was not the intention of the testatrix that the legacies bequeathed in the 6th section should be payable only out of the proceeds of the farm therein directed to be sold, but that the effect óf the 8th section was to make all "the six legacies of the 6th section chargeable against the whole estate, in the event that the farm fund should be insufficient to pay them — the first four to be paid in full and the last two in full, if the whole estate was sufficient. On the other hand, the executors insist that -the farm moneys only can be applied to the payment of the legacies given by the 6th section ; and that if it prove insufficient to pay all six of them, the 5th and 6th .legacies therein mentioned must suffer abatement, while the 8th section does not in any contingency render any of the legacies of the 6th section chargeable against the general estate. At the Special Term the learned trial judge held with the defendants, and the plaintiff has appealed.
The impression made upon my mind by the language of this will calls for a different construction in some respects from that adopted by the court below. Standing alone, and without the qualifying and enlarging effect of the 8th section, the 6th section would undoubtedly make the proceeds of the farm the sole fund from which any of thé legacies mentioned in that section could be paid. But it was apparently to do away with this limitation, so far as the first four legacies of the 6th section were concerned, that the 8th section was inserted. In it the testatrix provides “ that if the proceeds of my said farm and my other estate should prove insufficient to pay all the legacies hereinbefore given in full, then and in that case, the legacies given in and by the first five sections of this will, and in and by the first,' second, third and fourth clauses of the sixth section of this will, shall be paid or set aside and retained in full, and the remaining legacies shall be proportionally abated.” Although the first five sections of the will are here mentioned, it is obvious that this 8th section can have no effect upon them; for the gifts which they bestow
In my opinion, the effect of the 8th section was to make each .of the first four gifts in the 6th section a demonstrative legacy, and thus chargeable, if need be, upon the general estate of the testatrix. A legacy of money is demonstrative when the gift is so,made as •clearly to show the testator’s intention that the legatee shall certainly receive the amount bequeathed. (Watrous v. Smith, 7 Hun, 544, .and cases there cited.) Such an intention seems to be most distinctly manifested by the language of the Sth section where Mrs. Hunting directs the payment of the' particular legacies therein specified “ if the proceeds of my said farm and my other estate should prove insufficient to pay all the legacies hereinbefore given in full.” The -use of the phrase “ and my other estate” indicates that she contemplated the possible application of some of her property outside the proceeds of the farm to the payment of some of the legacies mentioned in the 6th section. It is unreasonable to suppose that this phrase relates solely to the money necessary to pay the two legacies of the 7th section; for they amounted to only $900,, and with personal property in excess of $10,000, the testatrix could hardly have assumed the occurrence of any .contingency which would render her general estate unable to pay these two legacies.
But I. think that it is with reference to the first four legacies alone, of the six legacies mentioned in the 6th section, that the will shows that clear, .separate and independent intention that the money shall go to the legatee at .all events, which is necessary to constitute a demonstrative legacy. (Pierrepont v. Edwards, 25 N. Y. 128.) The language of the 8th section, indicates an extreme solicitude that these first four legacies shall be paid, and, as it seems to me, is
In the view taken, the first, second, third and fourth legacies given by the 6th section- of the will are to he paid out of the farm fund so far as it will suffice to pay them; if there is a deficiency the general estate must make it up. The fifth and sixth legacies are payable only out of so much of the farm fund, if any, as may remain ' after paying the first four legacies of the 6th section. In no event are they to be charged against the general estate.
Except in these respects, the judgment of the Special Term was correct, and, after being modified as herein indicated, it should be affirmed.
All concurred.
Judgment modified as directed in opinion of Bartlett, J., with costs to both parties payable out of the fund.
