Christman v. Roesch

Prior to St. 1 Wm. IV, c. 40, the undisposed of personal estate of the testator vested in the. executor beneficially; but any expression in the will indicating a contrary intention—for example, one giving the executor a legacy—was seized hold of by the courts of equity to prevent that result. Farrington v. Knightly, 1 P. Wms. 544; Southcot v. Watson, 3 Atkyns, 226; Andrew v. Clark, 2 Ves. Sr. 162; Bennet v. Batchelor, 1 Ves. Jr. 63. In Cradock v. Owen, 2 S. & G. 241, decided in 1854, a testatrix gave to two devisees, who were also her executors, all her real and personal estate in trust for sale. She then directed that her executors should each retain out of the proceeds of the sale of the real and personal estate the sum of ¿50 for his trouble. She then made certain bequests to legatees by name, but did not otherwise dispose of her residuary estate. It was held that the gift of the ¿50 to the executors excluded them from any beneficial interest in the estate, and, there being no next of kin, that the personal estate went to the crown. In Saltmarsh v. Barrett, 29 Beav. 474, the testator gave legacies of 19 guineas to each of his executors, and then bequeathed the whole of his estate to them absolutely. He then charged his estate with certain legacies, and directed the executors to deduct their costs, charges, and expenses from any moneys of his estate coming to their hands. The Master of the Rolls held that the executors took as trustees for the next of kin; the principal reasons for that construction being the gift of the pecuniary legacy and the direction for the payment of the executors’ costs and expenses. Upon appeal, the court was divided, and the appeal was dismissed, without costs. 3 De G., F. & J. 279. It will be noticed that, in that case, the testator in terms bequeathed the whole estate absolutely to the executors, and then confirmed the absolute nature of the bequest by charging upon it certain legacies.

The law in this state is that “before a gift to executors eo nomine can be held to vest in them individually the intention that it should so vest must be plainly manifested.” Forster v. Winfield, 142 N. Y. 327 , 37 N. E. 111 . The question is, then, whether the intention of the testatrix to give her residuary estate to her executor individually has been plainly manifested. I do not think it has. The meaning of the words “all the rest and residue shall be used at the best of advantage of my executor,” standing alone, would not seem to me to be free from doubt; but, when coupled with the direction to the executor to sell the real estate “at his best advantage,” the doubt is greatly increased. Plainly, by the latter expression, she meant the advantage of her estate, not the personal advantage or benefit of the executor; and I see no reason to think that the two expressions were used in different senses, especially when the provisión that the residue shall be used at the best advantage of the executor is immediately followed, without separation, by the provision that he can give such papers and instruments as are required. It seems to me that there is much reason to think that the testatrix had in mind only the sale of the real estate to the best advantage of the estate and the payment from the proceeds

Of course, in this case we have to assume that the will before us is the will of the testatrix—that the draftsman drew it according to the instructions received by him. His testimony would seem to indicate that perhaps he did not interpret correctly. If he did not, then the instrument before us is not the will o'f the testatrix. It frequently happens that the draftsman of a will is also made executor. It would be very easy for the draftsman, under the circumstances disclosed in this case, to incorporate such a provision as is found in this will without the testator ever suspecting that he had made his executor his residuary legatee and devisee. The will in the Matter of Hollohan, 6 Dem. 166 , and 52 Hun, 614 , 5 N. Y. Supp. 342 , was unlike this one. There there was no ambiguity in the residuary clause, the executor was referred to by name, and he had not been given a pecuniary legacy. It is true that this construction will result in partial intestacy, which is not favored; but that does not overcome the weightier reasons for not allowing an executor to take the residuary estate unless it is plainly given to him.

The judgment should be reversed, and, as the facts cannot be changed, judgment directed for the plaintiff.

Judgment reversed, and judgment directed for the plaintiff, without costs. All concur.