In re Clemans' Estate

The above-named decedent died March 12, 1888, leaving a will dated January 21,1880, which has been duly admitted to probate. The-will first directs the payment of debts, and then devises to different members-of testator’s family seven distinct parcels of land. Then comes the ninth and last -dispositive clause, which is as follows, viz.: Ninth. “From my personal property the debts are to be payed and the funeral expenses. Then if there shall be a monument erected at my grave costing not less than $500, to be for the executors to decid the amount if greate than $500. Then, if anything is left from the personal property, it shall be equaly divided between my children, share and share alike.” Proceedings for an accounting have been duly taken by the executors. Objections to their account were filed by the contestant, and the whole matter was referred for trial and determination. The referee’s report has been filed, and an exception thereto brings up for consideration the only question now in dispute, to-wit, the ownership of a crop of wheat which at the time of the testator’s death was growing upon lands devised to Mary S. Osborn and Amasa Clemans. Nineteen-thirtieths of the wheat is conceded to have been upon land devised to the former, and the remainder upon that devised to the latter. The executors gathered and sold the crop, realizing therefrom the net sum of $655, which they now maintain should be equally divided among all the children of the testator under the directions of the said ninth clause of the will. The devisees claim that by implication of law the growing crop was specifically bequeathed to them as a part of the devise, and, that having been sold, the proceeds belong to them. The referee sustained the view of the executors. The testator left other personal property, which amounts to over $3,300 after payment of all debts and funeral expenses, including the erection of a monument.

The rules of the common law on the question here in issue may be briefly stated as follows, viz.: First, crops growing on the land of a decedent at the time of his death are personal property; second, if the decedent dies intestate, or testate without devising his land, such crops go not to the heir, but to the executor or administrator of the decedent, for payment of debts and for distribution according to law; third, if the decedent dies testate, having devised the land on which crops are then growing, such crops go to the devisee, and not to the executor. The°presumed intention of the testator that he who takes the land shall take the crops which belong to it is one reason for the

The claim is made on the part of the executors that such direction is given in the latter part of the ninth clause of the will, and that by the words, “if anything is left from the personal property, it shall be equally divided between my children, share and share alike,” the testator indicated his intention to-take from the devisees the crops growing on the land at his death, to give them in equal shares to all of his children. The clause here in question must be considered in its relation to the other provisions of the will, and, in arriving at the intention of the testator as expressed in that instrument, all of its parts must be construed together. It seems to me that the words above quoted have not the effect claimed for them. They signify no more than is expressed by the usual residuary clause found in wills relating to personal estate. They carry only what had not been legally and effectually disposed of by the foregoing provisions of the whole will. Thompson v. Thompson, 3 Dem. Sur. 409-412; Beekman v. Bonsor, 23 N. Y. 312 ; Christie v. Hawley, 67 N. Y. 133 -137; Kerr v. Dougherty, 79 N. Y. 327 , 346. The growing crops on the lands devised had been, previously, specifically bequeathed, by the force of the devises themselves, and would not, therefore, be carried away from the devisees and swept into the general residue, on which the words in the ninth clause could take effect. That such language is insufficient evidence of a testator’s intention to deprive his devisee of a growing crop is clearly established by the decision in Bradner v. Faulkner, 34 N. Y. 347 . The controversy in that ease was over a crop of wheat growing at testator’s death upon land devised by the will of one Amariah Hammond. A copy of that will, with the briefs of counsel, is found in the printed ease, on appeal

I am of the opinion that the wheat passed as a specific bequest to the devisees of the land, and, as it has been sold, that they are now entitled to its proceeds. There may be a decree modifying the referee’s report, and settling the account in accordance herewith, on two days’ notice.