1 Edw. Ch. 189 | New York Court of Chancery | 1832
The bill in this cause is filed for
a legacy of three hundred dollars, given by the will of. Mrs. Catharine Thomas, widow of the late General Thomas, of Westchester County. This will bears date the thirtieth day of December, one thousand eight hundred and twenty-four. The testatrix died ¿bout the tenth day of January, one thousand eight hundred and twenty-five. After devising various parcels of real estate to different persons and making some specific bequests, of personal property, she directs her executors to sell all the residue of her estate, both real and personal, and out of the moneys, when received, to pay legacies to twenty-four different individuals named in the will. The amount of each legacy is written opposite to their names: to some, the legacy is one thousand dollars, others have five hundred dollars, or three hundred dollars, and to some a less amount is given. Among the number, and the nineteenth in order, is : “ To Mary Smith, wife of Nathaniel Smith, Three “ hundred dollars”
It so happens that Mary Smith’s husband is Abraham Smith, and Nathaniel Smith’s wife is named Sarah. Hence arises the question, for which of the parties was the legacy intended ?
The complainants, Abraham Smith and Mary his wife, insist, that the mistake is in the description and not in the name of the legatee: and therefore, they are entitled to receive.it. On the other hand, it is said, the mistake was more likely to occur in the name than in the description, on which account Nathaniel Smith’s wife, although named Sarah, is the proper legatee. To determine this question is the sole object of the suit.
There is no ambiguity about the legacy or the legatee on the face of the will. It is clear and explicit, on the assumption that there is a person fully answering to the name and description of the legatee. But there is an ambiguity arising dehors the will, from the fact that neither of the claimants comes within the full designation of the legatee: a part of it referring nominally to one person and the remainder of it descriptively to another. This, taken by itself, is a latent ambiguity, which it is
I will now proceed td> examine the evidence in the cause. It is proved that Mary Smith, who claims to be the legatee, called the testatrix “aunt;-” and was not only in the habit of visiting her from childhood,- but of staying with her several weeks and even months at a time.- Also, that the testatrix appeared to be very fond of her, even to the time of her last sickness; and it seems there existed a strong attachment'between them, although it does not appear she was related by blood to the testatrix. She was the grand daughter of the sister of General Thomas, the testatrix’s husband. Her name .originally was Smith; and prior to her marriage with the complainant, Abraham Smith, she- was the widow of one Degrove and resided in the city of New York,- where the testatrix was in the habit of visiting her. About fifteen years ago she married her present husband and removed to Smith-town in Suffolk county, where they now reside.- ■
Sarah Smith, the other claimant, is proved to be much more nearly related to the testatrix, being the daughter of John Floyd, a nephew of the deceased, and therefore a great niece to the testatrix, who was consequently her great aunt. She
I am accordingly of opinion, Mrs. Sarah Smith, the wife of Nathaniel Smith, is not the person to whom the legacy is given.. On the contrary, it is sufficiently made out from the will and by the evidence that, although Mrs. Mary Smith happens to- be the wife of Abraham and not of Nathaniel, yet she is the person entitled to the legacy. A decree must be entered for the executors to pay the legacy to her.
With respect to the costs: . I must charge the defendant, Nathaniel > Smith, with the complainants’ costs. He gave notice to the executors not to pay the legacy to them and claimed it for himself and wife. He has, therefore, been the cause of the controversy. The costs of the executors may be paid out of the residuary estate with great] propriety. The will gives the residue to two persons, after the payment of the costs and expenses incident to settling the estate. If the bill had not been filed, the executors would probably have resorted to this court for directions concerning the contested legacy; and the expenses would then have been a fair charge against the estate. Besides, no injustice will thereby be done to the residuary legatees: for they have identified themselves with this litigation, by doing all in their power to assure the legacy to Mrs. Nathaniel Smith 5 and one of them is her brother.