Holt v. Jex — 16 N.Y. St. Rep. 270

Majority

p. 270

George C. Holt, as Executor of John Jex, Deceased, Resp’t, v. Jennie Jex, App’lt.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

1. Will—Construction of.

By the sixth clause of his will the testator bequeathed to his “wife twenty Chicago, R. I. and P. R. R. bonds of the nominal value of $1,000 each, Nos. * * *, also fifteen bonds Brooklyn Permanent Water Loan $1,000 each, and fifteen coupon bonds of the United States $1,000 each, Nos. (then followed fifteen numbers), also ten bonds of the Central Pacific R. R. Co., $1,000 each, Nos. * * * . I also give and bequeath to my wife the bond and mortgage * * * .” The testator had no coupon bonds of the United States of the numbers mentioned, but he did have fifteen bonds of Brooklyn Permanent Water Loan, which bore these numbers. Held,, that by the numbers used the testator intended to identify the Brooklyn Water Lean bonds. That the legacy of said bonds was specific. That the legacy of the U. S. coupon bonds "was a general one.

2. Same—Intention of testator governs.

In the interpretation of wills the intention of the testator is to govern and where the court are sure that they know what the testator meant they have the right to subordinate the language to the intention, and in such a case may reject words and limitations, supply them or transpose them to get at the meaning.

Appeal from judgment of special term construing the will of John Jex, deceased.

W. A. Butler, for app’lt; Payson Merrill, for resp’t.

The question involved in this appeal arises upon the construction of a single clause of the sixth paragraph of the will in question which reads as follows: “ 6. I give and bequeath to my dear wife, twenty (20) Chicago, Rock Island and Pacific Railroad bonds of the nominal value of $1,000 each, Nos. 3699 to 3715, inclusive, 3843, 3844 and 3845 due in 1917; also fifteen (15) bonds Brooklyn Permanent Water Loan $1,000 each, and fifteen (15) coupon

p. 271

bonds of the United States, $1,000 each, Nos. 2117, 3548, 138, 137, 141, to 144, inclusive, 159, 2311, 2317, 2324, 2554, 2609 and 382 due in 1899 and 1909; also ten (10) bonds of the Central Pacific Railroad Company $1,000 each, Nos. 3795, 5977, 3297, 7675, 7739, 8896, 9920, 9949y>14,472 and 18,379. I also give and bequeath to my wife the bond and mortgage of Elisha Dodson for $3,000 given to me for money loaned, him, together with the interest accrued thereon.”

The particular clause which is presented for consideration is the one relating to the fifteen bonds of the Brooklyn Permanent Water Loan, and the fifteen coupon bonds of the United States.

It was held in the court below that the legacy of the fifteen coupon bonds of the United States was a specific legacy, and that the numbers contained in this clause of the paragraph referred to, had reference to these bonds, and the testator having no such bonds in existence, the specific legacy was held redeemed, and the executor under no liability to make it good.

A very brief consideration of the language of the will, the grammatical construction of the paragraph in which this clause appears, and the peculiar features of the case presented by the evidence, leads us to a different conclusion.

It was assumed by the learned judge in the court below, and to this result he may have been led by the counsel who tried the case below upon the part of the appellant, that the numbers mentioned in the paragraph necessarily referred to the fifteen coupon bonds of the United States. It is conceded that the testator had no. coupon bonds of said numbers, but he did have fifteen bonds of Brooklyn permanent water loan which bore these numbers.

It will be conceded at once that had there been thirty numbers instead of fifteen in this paragraph, and the fifteen now-mentioned had occupied diverse ana different positions in respect to the other numbers, that these numbers applied to the Brooklyn permanent water loan bonds which were found in the testator’s possession, and the numbers which were not identified with those bonds must necessarily have referred to the coupon bonds, none of which were found in the possession of the testator at the time of his death. This being the necessary inference had thirty numbers of bonds been given, how is that inference to be changed simply because only fifteen numbers have been given? Is is not rather strengthened when it appears that of a single class of bonds, all the numbers mentioned are found in the possession of the testator?

Under these circumstances, these numbers applying to the bonds of the Brooklyn permanent water loan, ana being descriptive of those bonds, it was evidently the intention of the testator to give the 'number of those bonds, and to apply those numbers to none other.

p. 272

In this condition of affairs we have a legacy giving specific bonds of the Brooklyn Permanent Water Loan and a general legacy of fifteen coupon bonds of the United States, and under the rules determining the question as to whether the legacy is specific or general, no particular bonds being designated, the legacy is not to be deemed specific but general. The case of Brundage v. Brundage ( 60 N. Y., 544 ), fully sustains this position.

But it is urged upon the part of the respondents that this must be construed as a specific legacy because this gift of fifteen coupon bonds of the United States was surrounded by gifts of specific pieces of property, and if the testator had intended to make a general legacy to his wife we should not expect to find it in this particular clause of the will. But it seems to be a sufficient answer to this suggestion that it is in this clause of the will that the testator makes provision for his wife, and in no other portion of the will is any bequest or devise made to her except such provision as is made in some prior sections of the will jointly to his wife and daughter.

It is also urged that no portion of the language used by the testator can be disregarded for the purpose of changing a specific into a general legacy. In the application of this rule it seems to us that the learned counsel has not given due force to the rule which prevails in the interpretation of wills that the intention of the testator is to govern, and that where we are sure that we know what the testator meant, we have a right to subordinate the language to the intention, and in such a case may reject words and limitations, supply them or transpose them to get at the meaning. Phelps v. Davies, 92 N. Y., 199 .

Therefore, even if it were necessary in the case at bar to disregard some portion of the language used by the testator, if his plain intention required this to be done, the court might adopt this method of construction, yet in the view which has been suggested in regard to the construction of the clause in question, it is not at all necessary so to do. But in order to give full effect to the language used by the testator, the construction is absolutely necessary to be given to this clause that those numbers referred to the Brooklyn Permanent Water Loan bonds and not to the coupon bonds of the United States. Instead of disregarding any of the language of the testator we are by this construction giving effect to that language; whereas, if we did not put this construction upon it, we should be disregarding and striking out from the clause the language which he used. The numbers in question were put there for the purpose of identification. They did identify the Brooklyn Permanent Water Loan bonds and no others.

p. 273

If the evidence had shown that at the time of the making of the will the testator had had these Brooklyn Water Loan bonds and had parted with them, then the claim would have been made by the respondents beyond doubt, that the legacy had redeemed because the testator had parted with the specific property which he bequeathed, and such a contention would undoubtedly have been sustained, because it would have been held that the testator meant by the numbers inserted in that clause to identify the Brooklyn Water Loan bonds which he then owned and had since parted with.

Upon a full consideration of the whole case, there seems to be no doubt but that by the numbers used the testator intended to identify the Brooklyn Water Loan bonds, and did not intend that they should have any application to something which he never had owned nor ever expected to •own.

Under this construction the legacy in question was a genero! one, and under the principles laid down in the cases cited the executors were bound to comply with the directions of the will.

The judgment of the special term must, therefore, be reversed and judgment entered in accordance with the conclusion herein reached.

Brady and Bartlett, J. J., concur.