Estate of Hastings

This testator died in September, 1883, leaving a will executed in January, 1882, whereby he appointed John Hastings, Beverly Ward and Jenkins Van Schaick as his executors. This will was admitted to probate in October, 1883. It contains the following provision:

“ I give and bequeath unto my nephew, John Hastings, son of John Hastings, twenty shares of the capital stock of the Commercial Advertiser Association, and to my nephew, Hugh Hastings, ten shares of said capital stock, and to my nephew, Schoolcraft Hastings, five shares of said capital stock, and to my nephew, William Hastings, five shares of said capital stock, and to my nephew, John Hastings, son of Richard Hastings, five shares of said capital stock.”

Executor Van Schaick filed an account of his administra,tion in November, 1884; a separate account was subsequently filed by his two associates.

Both these accounts were judicially settled by a decree entered in June, 1883; but by that decree the question upon which I am now to pass was reserved for after determination.

It appears by these accounts that the testator was possessed, at his death, of certain shares of stock of the very sort specified in the bequests above referred to, and that in May, 1884, forty-five of such shares were transferred to the aforesaid legatees.

Before such transfer was effected, certain dividends were declared upon the capital stock of the Commercial Advertiser Association, and the share of the testator’s estate therein came to the hands'of his executors. These dividends had been earned during he testator’s life-time.

The dividends upon forty-five shares are still undistributed. The executors are not agreed as to the proper distribution of the same, and have therefore submitted the matter for the determination of the surrogate.

It is claimed on the other hand by opposing counsel, that the bequests to their clients must be regarded as bequests of a portion of the very stock owned by the testator himself in his life-time, and that of a consequence the legatees of such stock are entitled to the dividends earned thereon before the testator’s death.

Of these two contentions, the former must certainly prevail, if, in ascertaining the character of the bequests in question, the court is confined strictly to the terms of the will, and is not at liberty to resort to any extraneous evidence for the interpretation of its provisions.

There is nothing upon the face of that paper to show what were the objects and purposes of the Commercial Advertiser Association; what connection, if any, the decedent had therewith at the time of making his will, and theretofore and thereafter, and at the time of his death; how many shares, if any, of the capital stock of such association he owned at the date of his will; what was the total number of shares thereof at that time, and at the time he died; whether or not it has been possible for the executors to satisfy the legacies here in controversy without resort to the very shares whereof their testator died possessed.

The will contains no description of the stock bequeathed; the testator does not refer to it as “my” stock, nor has he in any other manner expressly indicated to his executors his wish, that, in the satisfaction of these legacies, resort should be had to any of the identical shares which might form a part of his estate at his decease.

Now there are numerous decisions holding that such bequests as these appear to be on the face of the will are not specific but general, and that the mere circumstance that a testator’s executors have found among the assets of his estate, property precisely answering to the description of property so bequeathed does not suffice of itself to give such bequests the quality of specific legacies. Tifft v. Porter, 8 N. Y., 516 ; Robinson v. Addison, 2 Beav., 515; Bronsdon v. Winter, 1 Ambler, 57; Sibley v. Perry, 7 Ves., 523; Davis v. Cain, 1 Ired. Eq., 304 ; Gilmer v. Gilmer, 42 Ala., 9 ; Corbin v. Mills, 19 Grat., 438; Dryden v. Owings, 49 Md., 356 .

But it is insisted by counsel for these legatees that it is the duty of the surrogate to consider certain extrinsic evidence which they have introduced (under objection and subject to a motion to strike out) which evidence, as they

The nature of the evidence in question is to the effect following:

That, at the date of the will, and at the date of its maker’s death, the Commercial Advertiser Association was a corporation organized under the laws of this State; that the capital stock of such corporation had from its creation consisted of 144 shares of the par value of $100 each; that of these shares the testator at the date of his will was the owner of 111; that this continued to be substantially the state of affairs until the time of his death, except that he had in the interval acquired, jointly with another, the ownership of fifteen shares additional; that at no time after, the execution of his will would it have been possible, in„-the event ^T~E!s~l3eatEr~tQrFave~^bFamed forty-five of such sEaH^outside the assets of his estate: that for several years befOTe°ffiS^3Í37no1dividends had been declared upon such stock; that there had accumulated thereon certain profits, from which, about two months after his death, the trustees of the corporation declared a dividend of $250 per share.

I understand that counsel for the residuary legatee concede that in substance the foregoing propositions are true, though they have reserved the right to offer testimony as to the matters therein stated, in case the surrogate shall find such testimony competent and material.

Is the evidence heretofore received under objection admissible, and if so does that evidence suffice to invest the bequests to the testator’s nephews, with the properties of specific legacies ?

One of the early cases, touching the distinction between general and specific legacies, is that of Ashburner v. Macguire (2 Bro. C. C., 108), which was decided by Lord Chancellor Thttrlow in 1786. When I recall what a multitude of judicial decisions I have from time to time examined in the investigation of the matter here to be passed upon, and consider how full of bewildering refinements and contradictions those decisions are, I can understand why Lord Thurlow held Ashburner v. Macguire under advisement for two years, and why I may possibly be pardoned for dealing in Eke fashion with the case at bar.

In opposing the consideration of extrinsic evidence herein, counsel for the residuary legatee invokes the familiar principle thus formulated by Mr. Jarman in his “Treatise on Wills,” vol. 1, p. 409.

“As the law requires a will to be in writing, it cannot, consistently with this doctrine, permit parol evidence to be adduced, either to contradict, add to or explain the con

The doctrine thus enunciated has been repeatedly asserted by the courts. King v. Badeley, 3 Myl. & K., 417; Mann v. Mann, 1 John. Ch., 231, affirmed 14 John., 1 ; Taylor v. Wendel, 4 Brad., 324 ; Jackson v. Sill, 11 Johns., 201 ; Bunner v. Storm, 1 Sand. Ch., 357 ; Jenkins v. Van Schaick, 3 Paige, 242; Sponsler’s Appeal, 107 Penn. Stat., 95.

Mr. Jarman somewhat qualifies this doctrine in the following proposition, which is supported by numerous decisions:

“Though it is the will itself, and not the intention, as elsewhere collected, which constitutes the real and only subject to be expounded, yet in performing this office of construction a court is not bound to shut its eyes to the state of facts under which the will was made; on the contrary, an investigation of such facts often materially aids in elucidating the scheme of disposition which occupied the mind of the testator. To this end it is obviously essential that the judicial expositor should place himself as fully as possible in the situation of the person whose language he has to interpret.”

Vice Chancellor Wigram in the introduction to his treatise on “Extrinsic evidence in aid of the interpretation of Wills,” says:

“ The question just suggested (that is the question under what circumstances the admission of extrinsic evidence in aid of the exposition of wills is allowed), has become much perplexed by want of proper attention on the part of both of the courts and of the text writers, to the different purposes to which the admissibility of extrinsic evidence may be applied, and to the different nature of the evidence, which, with reference to such different purposes, parties have ten-" dered for admission. It is said, and correctly, that the statute, by requiring a will to be in writing, precludes a court of law from ascribing to a testator any intention which his written will does not express, and in fact, makes the writing the only legitimate evidence of the testator’s intention. * * * At the same time, however, courts of law, though precluded from ascribing to a testator any in

The learned author further points out the distinction between evidence that is simply explanatory of the words of a will, and evidence by which intention is sought to be proved as an independent fact.”

His fifth proposition (p. 56, [2d Am. ed.], is as follows: “To determine the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, the court may inquire into every material fact relating to the person who claims to be interested under the will and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs.” * * • *

“The same, it is conceived, is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can in any way be made ancillary to the right interpretation of a testator’s words.”

Judge Taylor says in his “Treatise on Evidence” (8th ed., § 1153):

“Although extrinsic parol evidence contradicting, varying, adding to or subtracting from the contents of a written instrument, is inadmissible * * * still parol evidence may in all cases of doubt tie adduced to explain the written instrument, or, in other words, to enable the court to discover the meaning of the terms employed and to employ them to the facts. The doubt here adverted to may arise from one or both of the following causes: Either the language of the instrument may be unintelligible to the court, or at least be susceptible of two or more meanings, or the persons or things mentioned may require to be identified.”

Again, at section 1194:

“It may be laid down as a broad and distinct rule of law, that extrinsic evidence of every material fact, which

will enable the court to ascertain the nature and qualities of the subject matter'of the instrument, or, in other words, to identify the persons or things to which the instrument refers, must of necessity be received. Whatever be the nature of the document under review, the object is to discover the intention of the writer as evidenced by the words he has used; and in order to do this, the judge must put himself in the writer’s place, and then see how the terms of the instrument affect the property or subject matter. With this view, extrinsic evidence must be admissible of all circumstances surrounding the author of the instrument. In the simplest casé that can be put, namely, of an instrument appearing on its face to be perfectly intelligible, inquiry must be made for a subject matter to satisfy the description.”

And yet, again, at section 1195 :

“If the court has to determine whether a bequest of stock is specific or pecuniary, it will not only look to the context of the will, and the terms of the gift, but it will also receive evidence of the state of the testator’s funded property.” * * *

All this, of course, subject, as the author declares at section 1201, to the rule that:

“ Though evidence of circumstances surrouding the author of a written instrument will be received for the purposes of ascertaining his intentions, yet those intentions must ultimately be determined by the language of the instrument, as explained by the extrinsic evidence, and no proof, however conclusive in its nature, can be admitted with a view to set up an intention inconsistent with the known meaning of the writing itself.”

Mr. Spence says upon this subject in his “Equitable Jurisdiction (vol. 1, 556):

“It is to be observed that in relation to the subject of every gift or transfer and the person who is the object of the gift or transfer, the words used must be symbols of something extraneous to the instrument. We must, therefore, in all cases institute an inquiry beyond the instrument in order to ascertain what is meant by the words used.” * *

“Where the state of the property will show in what sense the testator has used the words to be found in his will, resort may in some cases be had to evidence directed to that point. Thus the state of a testator’s funded property may be resorted to in order to show whether a bequest of stock is pecuniary or specific.”

Now the executors who are here accounting must, of necessity, look outside the will to find what the testator means by capital stock of the Commercial Advertiser Asso

If the introduction of extrinsic evidence in this regard would" not only create a doubt as to the character of the legacies where no doubt had existed before, but would also dispel that very doubt by establishing that the legacies must have been intended as specific and not general, it seems tome that the evidence must be pronounced material and competent.

Many of the older decisions and some of a recent date hold, that, in cases like the present, parol evidence is only admissible in cases of latent as contracted with patent ambiguity.

This artificial distinction is thus enunciated by Lord Bacon, Law Maxims (Regula 23):

“ Ambiguitas patens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity.”

This definition of Lord Bacon’s is cited by Mr. Taylor, “more,” as he says, “out of respect to that great man, than in the expectation that it will, afford much practical information.” And Judge Story declared, over seventy years ago, in Peisch v. Dickson (1 Mason, 9), that he had endeavored in vain to reconcile the conflicting authorities as to latent and patent ambiguity.

Even if we apply to the present case, however, the Briefest tests, it can be claimed with much force that there is here an “ ambiguitas latens.” Boys v. Williams, 2 Rus. & M., 689; Hyatt v. Pugsley, 23 Barb., 286 , 297.

For it is the extrinsic evidence, and that alone, which leads to the discovery, that if the testator’s death had occurred on any of all the days between the day he executed his will and the day when he in fact died, the legacies to his nephews could only have been satisfied by recourse to the very stock of which he had himself been uninterruptedly the exclusive owner.

Upon the authority of the cases below cited, I have concluded that it is proper to receive evidence of the nature and extent of this testator’s estate, and of the circumstances under which he made his will, as an aid in the interpretation of the provisions of that instrument which are here the subject of controversy. Doe v. Hiscocks, 5 M. & W., 363; Abbott v. Middleton, 7 H. L. Cas., 68, 93; Adamson v. Ayres, 5 N.

Second. Having determined that the evidence whose

Upon this question I shall refer in some detail to several reported decisions.

The will which was the subject of construction in De Nottebeck v. Astor ( 13 N. Y., 98 ) contained this provision:

“I give to the six children of my daughter $100,000 of the public debt called the water loan, to be paid to each on attaining the age of twenty-one years.”

This was declared to be a bequest of $100,000 to the six children collectively, and not a bequest of that amount to each of them.

In pronouncing the opinion of the court of appeals, Denio, J., while admitting that the verbal construction of the provision seemed to favor the latter interpretation, found argument for the former in the fact that the testator was not possessed of anything like the amount of stock which would be necessary to satisfy the bequest in question as construed by the plaintiff.

The learned judge dwelt also upon the fact that in every instance where the testator had bequeathed funded securities he was the owner of such stock equal to the sums bequeathed.

“To my mind,” he declared, “this is satisfactory evidence of the existence of a relation in the mind of the testator between the stocks which he owned and those which he bequeathed, and of a general intention to give only what he at the time had.”

In White v. Hicks ( 33 N. Y., 383 ) there appeared upon the face of a will a doubt whether its maker had undertaken to dispose of property touching which he had a power of testamentary appointment. It was held that the court was at liberty to compare the dispositions of the will with the state of the testator’s own property, and to deduce therefrom an inference of his intention to embrace in his testamentary gifts the property whereof he was entitled to make disposition under the power.

“When a will” says Earl, J., “is claimed to be effectual as an execution of a power, all parts of it may be considered, and its language and terms construed in the light of circumstances surrounding the testator at the time of its execution; and if, from all this it can be seen that it was his intention to execute the power, such intention will have effect.”

The New Jersey court of errors and appeals in Norris v. Thomson ( 16 N. J. Eq., 542 ), held that the certain legacies were specific upon the following state of facts: A testator gave to his executors in trust 750 shares of the capital stock of the New York and Baltimore Transportation Line, for the benefit of certain beneficiaries. He also gave to certain trustees five bonds of $1,000 each, of the Delaware and Baritan Canal Company.

He did not refer to the stock or bonds as his own, or, in any other mode, declare upon the face of his will that the bequests were to be satisfied in specie out of his estate.

The court said that as it appeared by the terms of the will, construed in the light of extrensic evidence as to the state of the testator’s property, that he intended the legacies to be specific, they must be pronounced specific.

The rule that the testator’s adjudged intention must be ascertained by the words of his will was declared to be “not a technical arbitrary rule to be answered only by the use of particular words and expressions “but to be rather the embodiment of the general principles by which the character of legacies should be tested and determined; each will resting for correct construction upon the language employed, and established surrounding significant circumstances if such exist.”

The opinion of Van Dyke, J., in this same case is reported in 15 N. J. Eq., 493 . He says:

“Another rule admitted to be universal is always to be resorted to in solving these difficult questions, and that is, what was the real intention of the testator. This, if it can be ascertained, is always to govern. In the case before us, if we take the will itself, together with such other evidence and circumstances as we are permitted to consider, it seems imposible to conclude that the testator intended these to be general legacies. * * * . But we need only add the fact of the possession of these stocks and bonds by the testator at the time of making the will, and thence to the time of his death, to the language of the will itself, to ascertain the intention of the testator.”

In McCorn v. McCorn ( 30 Hun, 171 ; Affirmed 100 N. Y.,

Finch, J., in pronouncing the opinion of the court of last resort, dwelt upon the fact that a construction by which the legacies should be treated as not charged upon the real estate, would involve a notion, which the court was unwilling to entertain, ‘ ‘ that the testator, in making his last will under the solemnity of approaching death, indulged in bequests known to be useless and vain.

The testator, whose will was under consideration in Kunkel v. MacGill ( 56 Md., 120 ), bequeathed to his daughter, among other things, “$5,000 of the Wilmington, Columbia and Augusta R. R. bonds.” His will was executed thirteen days before his death. Among his effects were found five bonds of the kind bequeathed, each of the face value of $1,000. Evidence was introduced, showing that the market value of these bonds was about thirty cents on the dollar. It was contended by the legatee that the bequest in her favor was a bequest of $5,000 in money, with the bonds demonstrated as the fund primarily charged with its payment, or as a bequest of $5,000 worth of such bonds with direction to the executors to purchase the same for the legatee.

The court, after referring to the inclination of judicial tribunals to construe legacies as general, said:

“But, however strong may be this inclination, and into whatever refinements this course of judicial decision may have led, all the cases agree that the governing principle in this, as in all other questions upon the construction of wills, is the testator’s intention.”

The court then reviewed the will as a whole, and discovered therefrom, and from the state of the testator’s property, an intention on his part to make the legacy of bonds specific.

In Colpoys v. Colpoys (Jacobs, 451), it appeared that a testator had bequeathed to each of certain persons “ an annuity of £-long annuities,” and to each of divers other persons “ £-long annuities,” and the court was called upon to decide whether the latter class of legatees were entitled to long annuities or only to sums of sterling money.

In holding to the latter interpretation, great importance was attached to the fact that the whole fortune of the testatrix bore but a small proportion to the value of the bequests in question, if considered as bequests of “long annuities.”

In commenting upon the question how far that circumstance should be regarded as controlling, the court (Sir Thomas Plumer, M. R.) says (page 463):

“ The admission of extrinsic circumstances to govern the construction of a written instrument, is in all cases an exception to the general rule of law which excludes everything dehors the instrument. It is only from necessity, and then with great jealousy and caution, that courts, either of law or equity, will suffer this rule to be departed from. It must be the case of an ambiguity which cannot otherwise be removed, and which may, by these means, be clearly and satisfactorily explained.” * * *

“ In the case of a patent ambiguity, as a general rule, a reference to matters dehors the instrument is forbidden. It must, if possible, be removed by construction, and not by averment. But in many cases this is impracticable, as where the instrument furnishes no materials by which the ambiguity thus arising can be removed. If, in such cases, the court were to reject the only mode by which the meaning could be ascertained, viz : the resort to extrinsic circumstances, the instrument must become inoperative and void. As a minor evil, therefore, common sense and the law of England (which are seldom at variance), warrant the departure from the general rule, and call in the light of extrinsic evidence. The books'are full of instances, sanctioned by the highest authorities, both in law and equity.”

The language is followed by an approving reference to doe dem Jersey v. Smith (3 Brod. & Bing., 553), and to the principle therein stated by Batlet, J., as follows:

“The evidence here is not to produce a construction against the direct and natural meaning of the words: not to control a provision, distinct and accurately described, * * * 1 look to the state of the property at the time, to the estate and interest the settler had, and the situation in which she stood with regard to the property she was settling, to see whether that estate, or interest, or situation would assist us in judging what was her meaning.”

Innes v. Johnson (4 Ves., 563), was a case in which a testator had given his sister “ the full interest of £300 upon bond during her life,” and to her daughter, at her mother’s death, “all the interest that shall fairly and justly be due upon the said bond, etc., together with the principal. The testator left one bond for £300, and several other bonds in various other sums.

It was held by the master of the rolls that these legacies were specific Some stress was laid upon the word “said,” above italicised, as pointing to this construction; but there is a distinct and positive intimation that even in the absence of that word, the. court would have reached the same conclusion, in case it had appeared that the testator “ had only one bond in the world,” and that such bond was one of the particular amount bequeathed.

Ashton v. Ashton (Cas Tem. Tal., 152), is a case in which a testator had bequeathed to his nephew, £6,000 South Sea

The testator left a considerable personal estate, but was shown to have had ..only £53,602 annuities at the time he i made his will.

Held, that the bequest was specific, apparently upon the ground that it would be absurd to suppose that the testator could have had in mind the purchase by his executors of annuities that they would be required to sell again for buying lands, and that, therefore, it must have been his intention to give only the South Sea annuities of which he was possessed.

Reference was made in the early part of this decision to the case of Bronsden v. Winter, 1 Amb., 56. It was a case in which a testator had made a bequest of “¿62,000 capital stock in the South Sea Company.” At the date of his will he was possessed of precisely £2,000 in that species of stock and of no more. He sold some portion of this before his death. It was held that the legacy was general and that it had not become adeemed by such sale.

In commenting upon this decision Malins in Page v. Young (L. R., 19 Eq., 501) says:

“ The representation was made in that case that such stock,” (i e., stock of the kind bequeathed) “was not purchasable; “and if that had been completely proved it would have been a very strong circumstance for saying that the testator intended to give that which he then had. It turned ■out that the supposition was incorrect.”

In Robinson v. Addison (2 Beav., 515) a testator by his will dated in 1819, bequeathed to certain persons shares of stock in the Leeds and Liverpool Canal aggregating in number fifteen and a half. At the date of the will he was the owner of precisely that number of shares. He died in 1834, having disposed of the same in his life-time.

Upon the question whether the legacies were specific or general, the defendants were permitted to enter into evidence tending to show that there were infrequent sales of the shares; that they were usually held as permanent investments; that they were not commonly brought into the market; had no market price and could not, like stock and other shares in public companies, be purchased through brokers, but were generally disposed of by private arrangement.

At the argument of the cause the Master of the Rolls (Lord Langdale) announced as his then present impression “ that neither the expressions in the will nor the difficulty in purchasing and selling the shares prevented the construction that the legacies were general.”

He then proceeded to comment upon the fact that the canal property referred to in the bequests was vested in a corporation, the capital of which was divided into 2,600 shares, of which the testator owned only fifteen and a half; and added that “the shares though not frequently sold are nevertheless occasionally bought and sold and may be-had for money.”

The gift was construed, therefore, as a gift of “such an indefinite sum of money as would suffice to purchase as many shares as the testator had bequeathed by his will.”

The state of facts with which we have here to deal is, so-far as I have discovered, without any closer parallels in the reports than are to be found in the foregoing cases. And. herein is the most distinguishing feature of the present situation; that at the time when the testator was making and executing his will, it was true, as he well knew, that there-were not owned in all the world, save only by himself, as many shares of Commercial Advertiser stock as he was bequeathing to his nephews; that from that time onward until his death he did not part with any so held by him; and that during the interval he even acquired possession of several additional shares.

This seems to me to be utterly inconsistent with any interpretation of his will other than one involving an intention on his part to bestow upon his nephews a portion of the very stock which he might own at his death.

When a testator, in indicating the subject of a bequest, uses words that aptly describe property which his executors find among his assets, but that are also aptly descriptive of property which they may purchase without recourse to his estate, the bequest may properly be treated as general. But it is otherwise when the subject of the bequest is some article or thing which the testator and no person else has in his possession.

If a bequest of stock “standing in my name” or of “ my ” stock is specific, how can it fairly be claimed that a bequest of stock, which is only procurable as the testator knows, by resort to his own assets, lacks the specific-quality.

It is not true that such words as are above quoted serve to make specific the legacy in connection with which they are used, simply and solely because the testator’s directions-can be fulfilled in no other way than by the transfer to the legatee of the very thing (being parcel of the testator’s estate), which is given him by the legacy.

If, in Tifft v. Porter (supra), upon which counsel for the residuary legatee specially relies, the testator had owned substantially all the stock of the Cayuga Bank, I cannot doubt- that the court would have arrived at another conclusion than the one which was there reached. If the question whether the legacies here in dispute are specific were ^ res integra,” I should scarcely regard it as doubtful. As it is, the weight of authority is in favor of the claim of the legatees. A decree may be entered on two days’ notice in accordance with this decision, unless, pursuant to thé understanding with counsel when the case was submitted, any of the parties hereto wish, in the first instance, for special rulings upon offers of evidence.