37 N.J. Eq. 118 | New York Court of Chancery | 1883
This is a suit for a legacy. The defendants have demurred to the complainant’s bill, denying that on the case made by it she is entitled to relief. The complainaht is a daughter of Matthias M. Perrine, who died testate in th£ month of October,.
“ Whereas, my son-in-law, David B. Wyckoff, borrowed of me the sum of twenty-three hundred dollars, which sum I loaned him on interest; now, it is my will, in order to do equal justice to and between my children, that the same shall be considered and taken as so much of the share of his wife, Elizabeth, of my estate; and 1 give and bequeath to my said daughter Elizabeth the further sum of five hundred dollars, which is to be in full of her share of my estate; and I make no further provisions for the said Elizabeth Wyckoff in this my last will and testament.”
The $500 have been paid.. The debt of David B. Wyckoff to the testator was evidenced by a promissory note, dated April 1st, 1874, and payable one year after date. A petition in bankruptcy was filed against Wyckoff on the 3d day of May, 1876, on which he was subsequently, in the language of the bill, in due course of law adjudged a bankrupt. He was discharged on the 2d of April, 1878. The testator proved his debt and received two dividends out of the bankrupt assets—the first, June 15th, 1877, of $384.50, and the second, March 14th, 1878, of $123.-62, making a total of $508.12. The will bears date May 28th, 1877. It was executed, it will be observed, more than a year after the commencement of the proceedings in bankruptcy, and less than three weeks before the testator received the first dividend.
The complainant contends that the legacy given by the clause under consideration is not specific but demonstrative, in other words, properly construed the clause means this, that she is, under any circumstances, to have a legacy of $2,300, the reference to the debt of her husband being intended simply to indicate the fund which should be applied primarily to its payment. Such a construction would, I think, not only do violence to the language used by the testator, but would attribute to him a purpose certainly not expressed, and probably never entertained. No gift is made by express words, but an intention to give is very clearly expressed by words of direction or command. There can be no doubt that the thing which was before the testator’s mind, when he made his will, as the subject of the gift to the complain
“ Now, it is my will, in order to do equal justic'e to and between my children, that the same—that is, the debt due to me from my son-in-law—‘shall be considered and taken as so much of the share of his wife, Elizabeth, of my estate.”
In construing a will the court must always have regard to the circumstances, situation and surroundings of the testator. At the time this will was made the son-in-law had been adjudged a bankrupt; the testator knew it, he knew also that the greater part of his debt was hopelessly lost, and for that reason, unquestionably, he thought it was his duty, in order that justice might be done to all his children, to treat the debt of his son-in-law as an advancement to his daughter, and to effect that purpose he gave her the debt. He intended to say by the provision under consideration, as I think he has quite clearly said:
“ I want each of my children to have an equal share of my estate; the husband of my daughter Elizabeth borrowed of me, some time ago, §2,300, which he cannot repay; in order to be just to my other children, I give Elizabeth the debt I hold against her husband, as part of her share, and the further sum of §500, but she is to have nothing more.”
In deciding whether a legacy is specific or general, the intention of the testator must control, as it must the decision of every other question involving the construction of wills. There is no technical arbitrary rule requiring the use of particular words or expressions to make a bequest specific.- Such intention may be manifested either by clear words or by the general scope and texture of the instrument, but in the latter case, in the language of Lord Eldon, the inference should rest upo.n a strong, solid and rational interpretation of the will. The rule of construction to be observed in such cases is thus stated by Roper : “ A court of equity leans to .the consideration that all bequests are general; it therefore requires expressions actually bequeath
The case involves another question. Has the legacy been adeemed ? It is certain the debt which was the Subject of the legacy, did not exist at the time of the testator’s death. So much of it as had not been paid to the testator, out of the bankrupt’s assets, was extinguished by his discharge in bankruptcy,.so that the subject of the gift did not exist at the testator’s death. Some of the earlier decisions made a distinction between the effect of a voluntary payment and' a compulsory payment of a debt, which was the subject of a specific legacy, in adeeming the legacy. They held that, where the debtor came forward of his own volition and without solicitation, and paid the debt, in the testator’s lifetime, the testator’s acceptance of the money, under such circumstances, did not indicate an intention to take back the legacy; but if he, of his own will, and in the absence of any other apparent reason than that he wanted the debt- paid, constrained the debtor to pay, then his act was regarded as evincing an intention to adeem the legacy.. This distinction was recognized by the supreme court in Stout v. Hart, 2 Hal. 414, 424. It was there said : “ A voluntary payment is not an ademption, because accepting
Trying the complainant’s right to relief by this principle, it is clear that judgment must be awarded against her. The demurrer must be sustained, with costs.