In re Talmage

The following is the bequest in the will of the testator :

“First. I do give and bequeath unto my sister, Eleanor Day Rapelye, the ■sum of two thousand dollars, which shall be equally divided between her son and daughter at her death; also all my wearing apparel not otherwise specified; also all the goods and chattels in her possession belonging to me, not ■otherwise disposed of.”

At the time of the death of the testator some of her moneys were on deposit with the firm of Dan Talmage’s Sons, of which firm the .appellant executor was a member. The executor did not withdraw the funds from the firm, but during the lifetime of Mrs. Rapelye paid her interest on the amount of her legacy. The firm of Dan Talmage’s Sons failed. After the death of Mrs. Rapelye, her two children, the

We think there can be no reasonable doubt as to the construction of •the bequest quoted. The general rule is, as claimed by the appellant, that “where there is an absolute gift of real or personal property, in -order to qualify it or cut it down the latter part of the will should ; show an equally clear intention to do so by the use of words definite .in their meaning, and by expressions which must be regarded as imperative.” Here the words used are entirely definite in their meaning, and express the intention too clearly to admit of mistake that the principal should, on the death of Mrs. Bapelye, be divided between her . children. There is no repugnance between the provisions for Mrs. Bapelye and her children. It is plain that the gift to the former is for life. To the latter is given the remainder upon the death of the -life tenant. There is a clear distinction between the case of Roseboom v. Roseboom, 81 N. Y. 356 , and the one before us. In the Rose-boom Case there was a gift to the wife of one-third of the testator’s property, real and personal, and a direction that upon her death all • the testator’s property should be equally divided between his children. The court construed the expression “all my property” as meaning “all -my other property,” thus excepting from the direction the one-third •of the property devised to the wife. But in this case there is no room for limitation. The respondents must take the whole fund • upon the death of their mother, or we must reject entirely the direction of the will that the fund shall be divided between them. This •we cannot do. If we assume that Mrs. Bapelye assented to the in- . vestment of the legacy by loaning it to or depositing it with the firm, ,it would not relieve the appellant from liability. As Mrs. Bapelye was only a life tenant, she was not entitled to possession of the fund ■without giving security. Livingston v. Murray, 68 N. Y. 485 ; In re McDougall, 141 N. Y. 21 , 35 N. E. 961 . Her assent to the invest■ment could therefore only affect her own interest in the legacy, not =.that of the remainder-men. The decree of the surrogate on the ■merits of the controversy was correct.

We think the surrogate erred in allowing costs to the respondent Isaac A. Bapelye, the husband of the deceased life tenant. ' He had no interest in the fund, and so the surrogate properly held. Therefore he should not have been allowed costs.

Decree modified by striking therefrom the award of costs to the respondent Isaac A. Bapelye, and, as modified, affirmed, without costs fo either party. All concur.