9 N.Y.S. 753 | N.Y. Sup. Ct. | 1890
This action was brought by the plaintiff, as executor of Mary H. Drake, for a construction of that instrument. The testatrix, in and by her will, after providing for the payment of debts and funeral expenses, and attempting to exercise the power of appointment conferred upon her by the will of her father, James Drake, directed her executors to sell certain real estate, and out of the proceeds to pay a certain bond given by her to one James F. Evans, or, in case he should refuse to accept payment of the bond, to pay the whole thereof to the United States Trust Company, in trust to invest and pay the income thereof to Evans during his life, and to pay the principal upon his death to his issue him surviving; but, if he should die leaving no issue, him surviving, the testatrix directed that the principal should form part of her residuary estate, and be disposed of as the same was afterwards disposed of in her said will. She then made certain specific devises and bequests; and then, by the seventh clause, she ordered and directed her executors to sell all the rest, residue, and remainder of her estate, and to convert the same into cash, and out of the proceeds to pay certain legacies specified. Among these legacies was one of $10,000 to Sarah A. Lawrence, who died prior to the testatrix, and one of $1,000 to Henry Bradley, if he should be in the service of the testatrix at the time of her death,—which he was not,'—and one of $5,000 to the United States Trust Company, in trust to pay the income thereof to Esther M. Behin during her life, and one of $5,000 to the same company in trust to pay the income thereof to Emily Hancock during her life. The testatrix directed that, upon the death of either Esther M. Behin or Emily Hancock, the trust fund m which she had a life-interest should fall into, and be disposed of as part of, her residuary estate. The eighth clause of the will directed that, after payment of the legacies and provision for annuities made in the seventh clause, her executors should pay out of the proceeds of the sale the legacies therein specified. These legacies are all to charitable purposes, and among them are legacies of $5,000 each to the five defendants who have taken these appeals, and one of $5,000 to Benjamin C. Wetmore, to be applied by him to such charitable uses as he might see fit. The eighth clause of the will then contains the following: “All the rest and residue of my said residuary estate not herein otherwise disposed of I order and direct my executor to pay over, and I give and bequeath the same to, the above-named James Drake Black, Mary Hopeton Drake, and Mary Hopeton Smith, absolutely, share and share alike. ” By a codicil to her will the testatrix modified the attempt to exercise the power of appointment given to her, and made changes in certain specific legacies, the validity of which are not involved in this action. She also gave and bequeathed to St. Luke’s Hospital, in the city of Hew York, the sum of $5,000, to endow a bed to be called the “Hope Bed,” and gave and-bequeathed the right of disposing of said bed to one Hopeton Drake Atterbury. She also revoked the bequests, contained in the eighth clause of her will, of all the rest and residue of- her said residuary estate not otherwise disposed of to James Drake Black, Mary Hopeton Drake, and Mary Hopeton Smith, and instead thereof she directed her executor to pay over, and she gave and bequeathed, the said rest and residue to the said James Drake Black, Mary Hopeton Drake, Mary Hopeton Smith, and Hope-ton Drake, share and share alike. These four' residuary legatees are infants. The learned-justice before whom the case was tried found the death of Sarah
In the disposition of the questions presented upon the appeal, it is necessary to bear in mind one or two elementary rules governing the construction of wills. The first is that a will should be construed according to the intention of the testator, and that lapsed legacies, in case there is a general residuary clause, go to the residuary legatee, and not to the next of kin, and that a strictly residuary bequest must defer to all general legacies and annuities, .and can only be paid after all such claims are satisfied. It is to be observed, in considering the question as to the lapsed legacy in favor of Sarah A. Lawrence and the void legacy in favor of Benjamin C. Wetmore, that the rules of construction which have been adopted have arisen in contests between residuary legatees and next of kin, and that, so far as we have been able to ascertain, no question has been raised as between the legatees themselves under the will. It has been universally held, in cases where there did not appear to be any deficiency of assets to pay the general legacies, that, where there is a general residuary clause, lapsed legacies go to the residuary legatees. After all debts, legacies, and charges upon the estate are provided for, the residuary legatee takes the balance; and it is only in those cases in which the residuary legatee is not a general residuary legatee, but is a legatee of a particular part of the residue, that a lapsed legacy has been held to go to the next of kin. Such a case was the case of Kerr v. Dougherty, 79 N. Y. 334, as will be more particularly seen by the report of the case in 59 How. Pr. 44, where the will is set out more at large. It is clear that, as to the bequest to Henry Bradley, the will is to be considered precisely the same as though it was not contained therein, because it is given to him in case he should be in the service of the testatrix at the time of her death, and, as a consequence of his having left her service before her death, the legacy could not become operative, and the will is to be construed precisely the same as though it had not been inserted therein; and we think that the same rule applies to the legacy that has lapsed because of the death of Sarah A. Lawrence, and to the legacy to Benjamin C. Wetmore, void for indefiniteness. We think the will is to be considered as though, in view of the death of Sarah A. Lawrence before the testatrix, and in view of the void character of the bequest to Wetmore, they were not contained in the will at all. The result of these con
This brings us to the other question involved, and that relates to the fund which the testatrix has bequeathed in trust during the lives of James F.. Evans, Esther M. Behin, and Emily Hancock, and which, upon the death of the life-tenant, is to fall into, and be disposed of as part of, her residuary estate. The question necessarily presented here is, what residuary estate did the testatrix intend? There seems to be in this will three residuary estates.. The first one mentioned is in the seventh clause, the next one is in the commencement of the eighth clause; and in the same clause, at the end thereof,, we find the final residuary clause. In the consideration of this question, it is necessary to bear in mind that the testator supposed her estate would, be sufficient to pay the whole amount of her legacies. Having this in mind,, it seems to be perfectly apparent what she meant by her “residuary estate,” in respect to the trust funds mentioned. The legacies provided for in the-will became payable within one year after her death. These trust-estates.
This leaves but one other point to be discussed, and that is the question raised by the appeal of St. Luke’s Hospital, as to the legacy given to it in the ■codicil'. The court below found that it must be classed with those contained in the eighth clause of the will, and with them must abate. The appellant contends that it should be ranked with those found in the seventh clause. It seems to us that the legacy is not to be ranked with those of any particular division of the will, but is to be treated simply as a general legacy; and, if there is any order of priority stated in the will in which legacies shall be paid, the legacy in question must be subservient to such direction, as to priority. It is evident from the will that the legacies mentioned in the seventh clause are to be paid first. This legacy, by the codicil, is not inserted therein, or directed to be inserted therein, or to be paid in the same order, but is simply a general legacy. Hence it must be paid after the legacies which are specifically directed to be paid by the seventh clause. This makes the payment of this legacy to run parallel with the payment of the general legacies contained in the will. These general legacies are provided for by the eighth clause, and as such are to be paid prior to the ascertainment of the general residuum of the estate. The legacy in question naturally falls within that class. It certainly would be a perversion of the rules of construction to hold that, merely because this legacy was contained in the codicil, it should have a preference over any other general legacy. The same reasoning which would give it a preference over the legacies contained in the eighth clause would give it the same preference over those contained in the seventh clause; and it was clearly not the intention of the testatrix that this legacy should have a preference over and above all other legacies provided for. It is urged that the legacy to the hospital was for the purpose of endowing a bed, and that there cannot be any question but that the testatrix was cognizant of the sum necessary for such purpose, and, it being evident that she was aware that it took $5,000 to •endow a bed, that that was the cause of her specifying that amount in the codicil, and that, if the legacy abates, no endowment is possible, therefore the object of the testatrix’s generosity is defeated; and it is urged that, because it is given for a specific purpose, therefore it should be considered a specific legacy, rather than a general one, and, being of this character, does not abate. The difficulty with this proposition is that the fact is entirely overlooked that we must construe this will upon the assumption that the testatrix believed
Upon the whole case, therefore, we are of opinion that that portion of the judgment which provided that the lapsed and void legacies go to the residuary legatees should be reversed, and instead thereof it should be adjudged that they formed part of the general estate to be devoted to the general charges upon the estate, and that the judgment in other respects should be affirmed.
All concur.