In re the Accounting of Visscher

Headnote

Will — residuary clause directing conversion of real and personal property into money and division among charitable institutions — gift invalid as to amount in excess of one-half of estate —• heir at law entitled to pi-oceeds of real property unnecessarily sold and as to. which testator died intestate in preference to widow.

Matter of Ham, 213 App. Div. 487 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1925, which modified and affirmed as modified a decree of the Albany County Surrogate’s Court judicially settling the account of William L. Visscher as executor and directing distribution of the estate of Thomas H. Ham, deceased. By the residuary clause of his will testator directed his executor to convert the residue of his real and personal estate into cash and divide it among certain charitable corporations. More than one-half of the estate having been given to charity and testator leaving a widow, the amount bequeathed to them was valid only to the extent of one-half of the estate. After paying all debts, lawful legacies and expenses of administration there remained for distribution $21,214.33 as the proceeds of personal property and $18,000 the proceeds of real estate as to which testator died intestate. The controversy was between the testator’s widow and his brother and heir at law and related solely to the proceeds of the real estate. The former contended that under the residuary clause of the will there was a conversion of the realty into personalty and that she was, therefore, entitled to one-half of the proceeds of the realty. The latter contended that the personal estate being more than sufficient to pay all expenses of administration and all valid bequests there was no necessity for the conversion of the real property and that the same descended to him upon the death of the testator and that the proceeds

thereof unnecessarily sold belong to him. The Appellate Division upheld the latter contention.