Hopkins v. Gouraud — 23 N.Y.S. 189

Majority

p. 189

HOPKINS v. GOURAUD et al.

(Superior Court of New York City,

General Term.

May 1, 1893.)

Headnote

Ademption of Legacies—Change of Fund.

A wifi directed that the proceeds of a certain mortgage owned by testatrix should be used to pay an existing mortgage against the estate: Before her death the mortgage was paid to her, and she invested the proceeds in certain railroad bonds. Held that, as the bonds were traceable to the immediate proceeds of the mortgage, they were proceeds thereof, within the meaning of the will.

Appeal from special term.

Action by Ferdinand T. Hopkins, as executor and trustee, against Claude L. Gouraud, Manfred T. F. Gouraud, and Ferdinand T. Hopkins, Jr., for a construction of the will of Martha B. T. Hopkins deceased. From a judgment for plaintiff, defendants Claude L. Gouraud and Ferdinand T. Hopkins, Jr., appeal.

Affirmed.

The opinion of the trial court by DUGEO, J., was as follows:

“The direction in the sixteenth subdivision of the will is in the nature of ¡ specific legacy, and would come within the rule as to ademption of legacies.

p. 190

If the proceeds of the mortgage exist in any distinct form, so as to have a separate entity, or if a part of the proceeds so exists, the direction does not fail of force, for such proceeds or part must be applied as directed. In the case presented I think the proceeds of the Louisville Southern R. R. Go. bonds should be applied to a reduction of the mortgage. The bonds are traceable to the immediate proceeds of the East Broadway mortgage, and are themselves proceeds of the mortgage within the term as used in the will. The interest of Claude L. Gouraud in and to the rents and profits of 207 Division street seem to me unassignable.”

The sixteenth subdivision of the will of Martha B. T. Hopkins was as follows:

“I order and direct that any mortgage that may be upon the premises known as number one hundred and fifty-one East Forty-Sixth street, in the ■city of New York, be paid by my said executor out of the proceeds of the mortgage held by me on the' premises known as number two hundred and .sixty-four East Broadway, in said city of New York.”

The fifteenth subdivision of the will was as follows:

“I give, bequeath, and devise the house and premises known as number two hundred and seven Division street, in the city of New York, unto my executor, hereinafter named, in trust to collect and receive the profits thereof, and, after paying thereout all taxes and other necessary expenses, to pay the residue of said rents and profits unto my sons Manfred T. F. Gouraud and Claude L. Gouraud for and during the natural life of my said son Manfred T. F. Gouraud. Upon the death of my son Manfred T. F. Gouraud I order and direct my said executor, after paying out of said rents and profits all taxes and other necessary expenses, to next pay thereout six dollars per week unto my grandson, Manfred T. F. Gouraud, Junior, until he shall arrive at the age of twenty-one years, should he so long survive, and to pay the residue thereof unto, my sons Claude L. Gouraud and Ferdinand T. Hopkins, Junior, and upon my said grandson arriving at age of twenty-one years I order and direct my said executor to sell and dispose of said house and premises at public or private sale, and to execute and deliver to the purchaser or purchasers thereof a proper deed of conveyance, and out of the proceeds thereof to pay to my said grandson the sum of six thousand dollars, and to pay the balance of said proceeds unto my said sons, Claude L. Gouraud and Ferdinand T. Hopkins, ■Junior, in equal shares. In the event of my said son Manfred T. F. Gouraud living until my said grandson shall arrive at age of twenty-one years, then, upon my said grandson arriving at said age, I order and direct my executor to sell and dispose of said house and premises, and out of the proceeds thereof to pay to my said grandson the sum of six thousand dollars, and to pay the balance of said proceeds unto my sons Manfred T. F. Gouraud and •Claude L. Gouraud, in equal shares. In the event of my said grandson dying before arriving at the age of twenty-one years, I give, devise, and bequeath said, house and premises unto my said sons Manfred T. F. Gouraud and •Claude L. Gouraud, in equal shares; ■ but in case my said son Manfred T. F. Gouraud shall not then be living, I give, bequeath, and devise his share of said house and premises unto my son Ferdinand T. Hopkins, Junior.”

On the trial it appeared that at the time of the execution of said will the testatrix was the owner of a mortgage to secure the sum of ■$14,500, which mortgaged the premises known as No. 264 East Broadway, in the city of New York, and which was the mortgage intended and referred to in the last clause of the sixteenth paragraph of subdivision of said will; that subsequent to the making of said will, and during the lifetime of testatrix, the sum secured by said East Broadway mortgage was paid to said testatrix, who discharged and satisfied said mortgage in due form; that testatrix, out ■of the moneys so received, applied the sum of $3,500 to the payment

p. 191

of the second mortgage for that amount on the premises Ho. 151 East Forty-Sixth street, and invested the stun of $9,700 in 10 bonds of the Louisville Southern Railroad Company, which she afterwards exchanged upon a reorganization of the affairs of that company for other bonds, which she continued to own until her death.

Argued before SEDGWICK, C. J., and FREEDMAH and Me-ADAM, JJ.

Goldsmith & Doherty, for appellants.

J. McG. Smith, for respondent.

The judgment should be affirmed, with costs, upon the opinion rendered by the learned judge below. All concur.