In re Lyle — 85 N.Y.S. 290

Majority

p. 290

(41 Misc. Rep. 596.)

In re LYLE et al.

(Surrogate’s Court, Kings County.

November, 1903.)

Headnote

1. Wills—Specific Legacy.

Testator gave by her will 82 shares of stock, “whereof fifty shares, which are now pledged as collateral for a note, shall be released by executors from said pledge immediately on my death, if they shall not have been released before my death.” Held a specific legacy of the shares.

In the matter of the settlement of accounts of Jabez M. Lyle and Cornelius Doremus, executors of Mary A. Kissam, deceased.

Decree entered.

Charles O’Sullivan, for executors.

James W. McElhinney, for Elsie K. Easton.

The question raised is whether the bequests referring to certain shares of stock are to be regarded as general or specific bequests. The paragraph of the will in question giving this stock is as follows:

“Ninth. I give and bequeath to my granddaughter, Elsie Kissam Easton, eighty-two (82) shares of the New York Central and Hudson River Railroad Company, whereof fifty (50) shares, which are now pledged as collateral for a note, shall be released by executors from said pledge immediately upon my death if they shall not have been released before my death.”

Whether a bequest of stock or bonds is to be regarded as a general or specific legacy depends upon the provisions of the will in question. It has been held that if the stock is referred to in some specific manner, such as the numbers of the same, it will be regarded as a specific bequest. If, on the other hand, there is simply a bequest of stock in a corporation, without any particular description of the stock, then it is to be regarded as a general bequest. Matter of Caroline R. Stephens in Surrogate’s Court, Kings county. If, in the will in question, the testator had stopped after the words “New York Central and Hudson River Railroad Company,” there is no question that this would have been regarded as a general bequest; but the remainder of the section refers evidently to specific shares of stock held by her, because he states that 50 shares of such stock are now pledged as collateral, and further contains the direction that the executors, in the event of the testator not having released such stock from such pledge, shall proceed to release the same. This indicates the intention on the part of the deceased that this specific stock should go to the legatee in question, and this is confirmed by the twenty-second paragraph of the will, which, in addition to the ordinary provision providing for the payment of debts, contains the specific provision that the executors should immediately pay a certain note, for which 50 shares of the New York Central Railroad Company are pledged as collateral, so that such stock shall be released and be given to her granddaughter Elsie Kissam Easton. This provision of the will should therefore be regarded as a specific legacy, and the executors should act accordingly.

p. 291

Submitted with the papers is a request that the court decide whether damages awarded prior to the death of the testator for injuries done by the elevated railroad to certain property owned by the deceased should be given by the executors to the devisee to whom the property is specifically devised, or whether these damages are part of the residuary estate; the damages not having been actually paid until after the death of the testatrix. No particulars are given to the court, accompanying this request, nor is there any memorandum or brief by any of the parties interested upon the subject. I therefore am deprived of a full knowledge of the particulars, and can only pass upon what I assume is the situation, judging from the meager statements submitted to me. As it is stated that the damages were awarded prior to the testatrix’s death, I assume that the condemnation proceedings and report and the judgment have been duly entered, awarding damages to the testatrix. By the provisions of the condemnation law, as contained in the amendment of the Code (section 3371), it is provided that, after the report of the commissioners is confirmed, a final order shall be entered in the proceedings directing that compensation shall be made to the owners of the property. Where this is done, I take it, therefore, whether the money is actually paid or not, that instantly that order is entered it becomes a judgment in favor of the person named therein, and that it is not to be regarded in any way appurtenant to or attached to the real property which has been condemned. Accordingly this award goes into the residuary estate of the deceased, and a devise of the property abutting on the street does not carry with it the right to collect this award.

Decreed accordingly.