In re the Judicial Settlement of the Accounts of Muir & Allen

Majority

p. 644

In the Matter of the Judicial Settlement of the Accounts of John Muir and John H. Allen, Executors.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.)

Headnote

Wills—Construction of—What language constitutes the beneficiaries TENANTS IN COMMON TAKING DISTRIBUTIVELT.

The testator left a will in which was contained the following clause: “Fourth. I give and bequeath to my brothers, Philip and Charles, and my sisters, Euphemie, Agnes and Elizabeth; the residue and rest of all moneys so realized after all dues have been paid, it constitutingthe half moneys aforesaid; my brothers, Philip and Charles, and sisters, Euphemie, Agnes and Elizabeth, to share and share alike.” Philip and Charles died before the testator, but subsequent to the execution of the will: Feld, that the language constituted the beneficiaries named in the clause tenants in common, taking distributively; under this construction the legacies to the two deceased brothers lapsed, and their share went to the widow.

Francis. H. Bosworth, for app’lt; Alfred; E. Mudge, for John Muir, executor, resp’t; John Winslow, for John H. Alien, executor, resp’t.

This is an appeal from a decree of the surrogate of Kings county rendered upon the accounting of the executor of the last will and testament of John Wilson, deceased.

The question involved upon this appeal is presented by the fourth clause of the wifi of John Wilson, which is as follows:

p. 645

“ Fourth. I give and bequeath to my brothers, Philip and-Charles,.and my sisters, Euphemie, Agnes and Elizabeth, the residue and rest of all moneys so realized after all dues have been paid, it constituting the half moneys aforesaid; my brothers, Philip and Charles, and sisters, Euphemie, Agnes and Elizabeth to share and share alike.”

Philip and Charles, the two brothers named in this provision of the will, died before the testator but subsequent to the execution of his will.

■ In the first clause of his will the testator devised a house and lot to his wife, and in his second clause he directed his executors to convert all the residue of his estate into money, and pay off all his debts and liabilities. Then, by the third clause, he bequeathed to his wife one-half of all the money so realized after all dues were paid. Then followed the fourth clause, bequeathing the residue of the moneyvas we have seen.

Upon this accounting before the surrogate, the sisters claimed the whole of the residue bequeathed by the fourth clause by right of survivorship. They insisted upon a construction that should manifest the intention of the testator to give one-half of the residue of his estate to his brothers and sisters jointly as a class, of persons and not as individuals.

The widow, on the contrary, or rather her executor, contended that the language of the will constituted the beneficiaries tenants in common, and that each brother and sister took distributively under the fourth clause of the will.

Under such a construction the legacies to the two deceased brothers^ lapsed, and their share went, to the widow under the Revised Statutes, part 2, chap. 1, title 2, art. 3, § 75. . ' .

. The surrogate decided in accordance with the contention in behalf of the widow and made his decree accordingly.

The rule in this state has been followed by the surrogate and his. decree should be affirmed. Language like that employed in the fourth clause has been held to constitute the beneficiaries tenants in common, taking distributively unless other portions of the will required a different construction, which is not the case here. Delafield v. Shipman, 103 N. Y., 468 ; Hoppock v. Tucker, 59 id., 202.

The decree should be affirmed, with costs, to be paid by the appellant.