In re the Final Judicial Settlement of the Accounts of Edie

Majority

p. 310

In the Matter of the Final Judicial Settlement of the Accounts of Judson Edie, as Sole Executor, etc., of John McCleland, Late of the Town of Greenwich, Deceased, Respondent. The American Baptist Home Mission Society and The American Baptist Missionary Union, Appellants.

Third Department,

January 9, 1907.

Headnote

Will construed — counsel fees.

A testator bequeathed the use of the sum of $2,000 to his niece for life, provid- ■ ing that if at any time she should have a" child or children who should arrive at . .the .age of ten years,' she should have .the sum absolutely. If the beneficiary died before the child' arrived at ten years of age the sum was given to her child or children'if she had any. If she died without child or- children, the legacy ' was to go to a missionary union, which was also made the residuary legatee. .By a codicil-'the testator provided that whereas, he had given his niece the use of ;§2","000 for and during her natural life, he now in his codicil gave and

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bequeathed to her “ the use of §3,000 more, making §4,000 for and during her natural life. At her death the principal to go as given and directed in my said will.”

Reid, that the testator intended to give to his niece the life use of $4,000 instead of §3,000, and that in the event of her having a child who should arrive at the age of ten years, the $4,000 should he hers absolutely;

That even though the codicil were ambiguous in respect to the absolute right to §4,000, if a child attained the age of ten years, that construction would he given which preferred those of the blood of the testator to strangers;

That counsel fees paid by the executor to collect moneys from the coexecutor was properly chargeable to the estate, being paid not solely for his own benefit hut for that of the estate as well.

Appeal by the American Baptist Home Mission Society and another from a decree of the Surrogate’s Court of the county of Washington, entered in said Surrogate’s Court on the 5th day of May, 1906, settling the accounts of the respondent.

Upon the accounting in this matter the American Baptist Home Mission Society contested the accounts of the executor and objected to two items therein, one showing a payment of a legacy "to Jennie King Hicks of $4,000, and one showing a payment for counsel and legal services of $750. Both of these items, as well as an item of $250 for legal services on the accounting, which i@ also objected to, were allowed by the surrogate and this appeal has resulted.

The accounting involved the construction of the will and codicil of the testator, John McOleland, who died in 1887. His will was dated November 29, 1884, and his codicil July 28, 1887.

The 9th and 16th, paragraphs of the will are as follows :

“ 9. I give and bequeath to my niece, Jennie King, of Mentor, in the State of Ohio, the use of the sum of Two Thousand Dollars, for and during her natural life. If at any time she should have a child who should arrive at the age of ten years, then I give and bequeath the said Two Thousand Dollars to the said Jennie King absolutely. If she dies before any such child arrives at the age of ten years, then I give the same to her child or children under ten years of age, if she then shall have any. And if she dies without child or children, then the said legacy is to .go to the American Baptist Missionary Union to be paid to any officer of said institution who has the proper authority to receive the same and his receipt shall be a sufficient discharge for my executors therefor,”

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“16.- All the rest, residue and .remainder of my property, of • every name and nature, I give, bequeath and devise to The American. Baptist Home Missionary Society," formed in. Hew York in" the year 1832, to be paid to any'officer of said Society duly authorized to- receive the "same, whose receipt shall be a sufficient discharge for. my executors therefor.’’

The 7th paragraph of the codicil is as follows

. “Seventh.- Whereas in my said will I have given t,o my niece Jennie King of Mentor, Ohio, the use of Two Thousand Dollars for and during her natural life. How in my codicil I give and bequeath to her the usé of Two Thousand Dollars moré, making Four Thousand Dollars for and during her natural life. At her death the principal to go as given and directed in my said "will.”

D. W. Perkins, for the appellants.

F.H. Mason and Herbert Van Kirk, for the respondent.

The learned surrogate was of the opinion that the testator intended ■ to give Jennie King, now .Jennie King Hicks, the life use of $1,000 instead of- $2,000,- and that, in the event of her having a child who "should arrive .at the age of. ten years, such $4,00.0 should be hers absolutely, and that the purpose of the testator evidenced by the 7th clause of the codicil was to add $2,000 to the $2,000 bequeathed by the 9th clause of the will, upon the same terms mentioned in" that clause. In this we think he was clearly right. In the 7.th " clause of the codicil, after describing somewhat, inaccurately what his gift to Jennie King in the 9th clause of liis will was,‘the testa-' tor says: “I give and bequeath to her the use of Two Thousand Dollars more, making Four Thousand Dollars,” which clearly shows that he intended- by the codicil simply to change the word two, to four in the 9th clause. It is true that .he says in the codicil that “At her death the principal to go as given and directed in my said will.” The appellants urge that by this he intended that the $2,000 should at her death fall into the residue and go to the American Baptist Home Mission■ Society under the 16th. clause ■ of the-will. We cannot agree, to this,, and think . instead that he-intended it should “ go as given and directed ” in the 9th clause,

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which it was the purpose of this item of the codicil to modify. In such 9th clause he had given the amount there bequeathed to Jennie King; if she died before any child of hers arrived at the age of ten years, to such child or children, and .if she died without children, then to the American Baptist Missionary Union. But by the same clause he gave her the right to it absolutely if at any time she should have a child who should arrive at the age of ten years. The words “ at her death” in the codicil, when related to the provisions of the 9th clause of the will, may fairly be construed to mean at her death before any child of hers arrived at the age of ten years or at her death without children. It cannot be that the testator intended by this codicil to discriminate against the children of Jennie King, and to provide that moneys, the use of which had been given to their mother for life, should if she lived until they had passed the age of ten years be given to a stranger to her blood, when he had shown such'solicitude to protect her children in the very clause of the will which he was modifying by the codicil.

Even though the contention of the appellants with respect to the construction of this will is equally as ■ probable as the construction we choose to give it, nevertheless we are required to construe it as we do under the well-settled rule that where a will is capable of two interpretations the one should be adopted which prefers those of the blood of the testator to strangers. ( Wood v. Mitcham, 92 N. Y. 375 , 379, and cases there cited.)

Neither of the contingencies mentioned in the 9th clause of the will having happened and Mrs. Hicks having a child who has arrived at the age of ten years, she became entitled to the.bequest of $4,000 absolutely, and the executor, therefore, properly paid it to her.

The item of $750 allowed for counsel fees and legal services paid by the executor to his attorney was proper. The portion of the charge for collecting a considerable sum from the coexecutor was not alone to save the accounting executor from loss, but was for the benefit of the estate as well. Nor is there any evidence in the case disputing that given as to the value of all the services covered by this item. .

The allowance of $250 to the attorney for services on the accounting was for services about which the surrogate must have had personal knowledge not only as to the time spent but as to the value of

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the services rendered, as they were rendered before him-. He has. certified in the decree the amount there allowed for such services." to be a fair compensation therefor,” and we see too reason for disturbing his conclusion with respect thereto.-

The decree should be affirmed,, with costs.

Decree unanimously affirmed, with costs; Parker, P'. 'J., not sitting..

Cases cited

Wood v. Mitcham 92 N. Y. 375 N.Y. 1883-05-08 at 379 p. 313