Hyperlawhypertext legal database In re Mapes' Estate 7 N.Y.S. 872

← Cases

In re Mapes' Estate

7 N.Y.S. 872 Court N.Y. Gen. Term Decision date 1889-12-10 English

Delivered by Barnard, P. J.

Contents

Majority

p. 872
In re Mapes’ Estate.
(Supreme Court, General Term, Second Department.
December 10, 1889.)

Headnote

Wills—Residuary Clause.
Under a will giving certain specific legacies, with a residuary clause giving all the residue of testator’s property to his daughter, property bequeathed to a son for life, with remainder to the son’s surviving children, passes, under the residuary clause, on the son’s death without issue after the daughter’s death.
Appeal from surrogate’s court, Orange county.
Petition by Oscar Druland and George H. Mapes, executors of the last will of George Mapes, deceased, for distribution of property in their hands and for their discharge. From the decree rendered various interested parties appeal.
Argued before Barnard, P. J., and Pratt, J.
F. V. Sanford, (Lewis E. Carr, of counsel,) for appellants Andrew. J. Mapes and others. W. D. Mills, for appellants Hannah Mapes and George H. Mapes. John F. Bradner, for respondent the Ladies Home Society of Orange county. B. R. Champion, for respondents executors of George Mapes, deceased, and executors of Sarah J. Mapes, deceased. Bangs, Stetson, Tracy & MacVeagh, for respondent the American Bible Society.

The testator intended to dispose of all his property. He made certain specific legacies and bequests, and then made a very comprehensive residuary disposition of all the residue of his property to his daughter, Sarah Mapes. There was a bequest of a life-estate in $4,000 to his son, with remainder to the'ehildren of this son who survived him. It is this clause which occasions the question to be adjudged. The son died after his sister, and left no children. Did the testator keep back a possible estate to revert to him in case the son died childless? It seems very clear that he did not. He provided for the life-estate and for the remainder, and, if there was anything beyond that, he bequeathed it by the residuary clause. The intention to include in the residuary clause all the testator’s property and interests is preserved, and the intention to exclude from its operation must appear by words limiting the effect of the clause, or by an intention to exclude from the whole will taken together. Riker v. Cornwell, 113 N. Y. 115 , 20 N. E. Rep. 602 ; Floyd v. Carow, 88 N. Y. 560 . The judgment should therefore be affirmed, with costs to respondent out of the estate.

Cases cited