In re the Judicial Settlement of the Account of Moore

Majority

p. 213

In the Matter of the Judicial Settlement of the Account of Caroline Mead Moore, as Executrix, etc., of Henry D. B. Bailey, Deceased. Mary Bailey Dortic, Appellant; Caroline Mead Moore, as Executrix, etc., of Henry D. B. Bailey, Deceased, and Others, Respondents.

Second Department,

March 12, 1909.

Headnote

Will construed — when gift by codicil substituted for that in will.

Where a will, malting two specific legacies, states that they were not larger because the legatees were already wealthy, and thereafter a codicil is made, stated to he “ a supplement and addition ” to the will, which is a literal repetition of the will except for slight verbal changes, and an omission of the statement of the reasons for not making said legacies larger, and except for the omission of an executor, the second provision is substituted for the first, and the legatees are not entitled to take both under the will and codicil.

Appeal by Mary Bailey Dortie from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 19th day of October, 1908, judicially settling the account of the respondent Caroline Mead Moore, as executrix.

On the 10th day -of January, 1878, Henry D. B. Bailey made his last will and testament as follows:

“ I, Henry D. B. Bailey, of the Town of East Fishkill, County of Dutchess, State of Hew York, being of sound and disposing mind, do make, on this tenth day of January, 1878, this my last will and testament.

“ Item: I order my executors, hereinafter named, to pay my

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funeral expenses and my. jtist debts I may be owing at the time of my decease.

“Item: I give and bequeath to ITenry Bailey Moore Fifteen hundred dollars, and appoint his mother, Caroline Mead Moore, his .guardian during his minority.

“ Item : I give and bequeath to my niece, Sarah Appleby, wife of Charles.Edgar Appleby, Five thousand dollars.

“Item: I give and bequeath to my niece, Mary Bailey Dortic, ■wife of Charles Dortic, Five thousand dollars.

“Item: My executors, after paying my funeral expenses, .just debts and the legacies named in the above items, shall divide the balance of my property into two equal shares.

“ Item : One of the two equal shares I give and bequeath entire unto my niece, Caroline Mead Moore, wife of James Moore, Jr.

“Item: One of the two equal shares I give and bequeath to my nephew, John B. Cooper, and his sister, Elizabeth Cooper, share and share alike.

“ Item: In case of the death of any of my heirs, herein named, the share or legacy they would receive, if living, shall go in equal proportions to his or her heirs.

“ Item : All former wills made by me are hereby abrogated and of none effect.

“ The reason I have not given to my niece, Sarah Appleby and my niece Mary 'Bailey Dortic, but Five • thousand dollars each, is that they have already become possessed of wealth arid do not require any assistance from me now, and are not likely to require it in the future, and trust that they will consent in the propriety of the disposition I have made of my property.

“ I hereby appoint my nephew, John B. Cooper, and my niece, Caroline Mead Moore, and Leonard Y. Pierce, executors of this my last will and testament.

“ In witness whereof, I have hereunto subscribed my name and affixed my seal the tenth day of January, in the year of our Lord one thousand eight hundred and seventy-eight.

“ HENRY D. B. BAILEY [l. s.] ”

On the 5th day of April, 1905, he made a codicil whereby he appointed an additional executor and in other respects confirmed and republished, his said will. On the 13th day of April, 1905, he

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added a second codicil, which he prefaced with the statement that it was “ to be taken as a supplement and addition ” to his last will and testament. The said codicil was virtually and almost literally a repetition of the will except for slight verbal changes, the omission of the statement of the reason for giving to Sarah Appleby and Mary Bailey Dortie but $5,000 each, a provision empowering- the executors to sell the real estate and the omission of John B. Cooper from the executors.

Alfred H. Holbrook [Payson Merrill with him on the brief], for the appellant.

Allison Butts [C. P. Dorland with him on the brief], for the respondent executrix.

The question involved in this case is whether the legacies of $5,000 to Sarah Appleby and Mary Bailey Dortie, bequeathed by the codicil, are substitutionary or accumulative. It is undoubtedly the general rule that the repetition of a legacy in the same instrument is substitutionary, and that the repetition of it by a second instrument, as in the ease of a will and a codicil, is accumulative ; but this question, like every one of construction, is one of intention to be determined from the intrinsic evidence of the documents themselves and the circumstances of the case (Dewitt v. Yates, 10 Johns. 156 ; Southgate v. Continental Trust Co., 74 App. Div. 150 ), which is far from saying that extrinsic evidence may be admitted to show an intention different from that shown by the will itself.

Notwithstanding the general rule and the prefatory statement of the codicil that it is “ to be taken as a supplement and addition ” to the will, the internal evidence furnished by the will and the codicils conclusively shows that in making the second codicil the testator was engaged in substitution and not in. addition. The codicil is complete in and of itself. Its evident purpose was to empower the executors to sell the real estate and perhaps to drop out one executor. The language of the will is repeated almost literally. Why that was done in place of merely making the desired changes is a matter of speculation. If one part of the codicil is to be regarded

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as “ a supplement and addition ” to the will, every part must be, whereas it is plain that much of it.can only be substitutional, i. e., the- provision ‘for the payment of debts, the disposition of the remainders and the appointment of executors. Aside from the evidence already referred to the disposition of the remainders by the 5 th clause of the codicil is conclusive. The language of that clause, quoted with but slight change from the similar clause in the will, is as follows : “ My executrix and executors, after paying my funeral expenses, jiist debts and the legacies mentioned in the above items, shall divide the balance of my property into two equal shares.” The words “ above items ” obviously refer to the earlier provisions of the codicil. After paying the debts and funeral expenses and the legacies mentioned in the codicil, the executors were required to divide the balance, of the property into two equal shares and to distribute them as thereafter provided. The words used do not admit of a construction that the balance of the property remaining, after paying the legacies provided for in the codicil, in addition to those provided for in the will itself, should be divided; and thus the internal evidence of an intention to provide for substitution and not accumulation becomes conclusive.

The judgment is affirmed.

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Orange county affirmed, with costs to the respondents payable out of the estate.

Cases cited

Dewitt v. Yates 10 Johns. 156 N.Y. Sup. Ct. p. 215
Southgate v. Continental Trust Co. 74 App. Div. 150 N.Y. App. Div. 1902-07-08 p. 215