Wooley v. Allen — 1 N.Y. St. Rep. 504

Majority

p. 504

Wooley, as executor, v. Allen and another.

(Supreme Court, General Term, Second Department,

Filed July 23, 1886)

Headnote

Will—Construction of

Testatrix, toy her will, in the fourth clause, bequeathed specific articles

p. 505

to her cousin, May W. Hulet, and then provided that $3,000 should be put at interest for her benefit, interest to be paid her during her life, and at her death the principal to go to her children, if she had any, if not, to go equally to the children of testatrix’s brother. The clause ends with the words, “my bond and mortgage at Hunter’s Point;” then follows the fifth clause. Held, that as it would be forced to prefix these words to the fifth clause, the word “also” should be read before “my bond,” etc., and that there was an absolute gift of said mortgage to May W. Hulet.

The testatrix, by her will, hr the fourth clause, bequeathed specific articles to her cousin, May W. Hulet, and then provided that $3,000 should be put at interest for her benefit, interest to be paid her during her life, and at her death the principal to go to her children, if she had children, if not, to go equally to the children of testatrix’s brother. The clause ends with the words, ‘ ‘ my bond and mortgage at Hunter’s Point;” then follows the. fifth clause. These words belong to the fourth clause, and were intended to have been connected therewith by the word “also.” The will was drawn by the testatrix herself, and the will shows repeated instances of this word to connect gifts to the same persons. There is one instance of the use of the word in the fourth clause and once also in the fifth clause. This fifth clause is perfect in itself. The gift is of $300 each to the Allen children, and to Jane Allen a pitcher, “also” $300. The annexation of the end of the fourth clause to the fifth would be forced and immaterial. It would read “my bond and mortgage at Hunter’s Point. Fifthly, I give and bequeath to Henry P. Allen, Charles H. Allen, Philip Allen, William C. Allen, my nephews, the sum of $300 each.”

My conclusion is, therefore, that the connecting words in respect to the bond and mortgage at Hunter’s Point belong to the fourth clause, and are to read as if connected with the other portion by the word also, and that the gift of the mortgage is absolute to May W. Hulet.

There is no language to create a fife estate with remainder to children, and the rule is where there is a bequest it is absolute, unless a lesser estate is manifest from the will.

Decree of surrogate reversed in this respect. The executors should be allowed the payments they have made under the former decree.

The costs of this appeal to executors is to be paid out of the estate, no other costs allowed, and the costs included in the decree upon the accounting are set aside, and the case is remitted to the surrogate for further action.