In re the Final Settlement of the Accounts of Reynolds — 36 N.Y. St. Rep. 332

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In the Matter of the Final Settlement of the Accounts of Mortimer F. Reynolds, as Ex’r.^[1]

(Court of Appeals, Second Division,

Filed March 3, 1891.)

Headnote

1. Will—Construction op.

Testator, by the third.subdivision of his will, gave his-son a building ..known as .the, Arcade, “and all the furniture and personal property in ana upon the same, or in any manner connected therewith,".etc. .After certain .devises to his wifein'lieu of dower, he gave .the,residue of his estate to his son'in trust,‘to'be divided among certain persons-named. Held, that a '.bank book, -with certain securities which-were .found in a -vault in the Arcade, did not pass .to the son by the third subdivision, but the bequest was limited to such -personal property, in addition to furniture, as properly^[1] belonged to-and was employed by the testator in-the use which he, made of the.- buildingidevised.

3. -Same.

‘General words following an enumeration of articles in a bequest should be.limited to-things of the same general character as those enumerated, unless they occur in a general b.equest of-the whole of testator’s estate or in a residuary clause, or where the will does not contain a residuary disposition.

3. Executors and administrators—Payments.

. An executor Will not "be allowed to credit himself with a sum of $250 presented as a gratuity-to a commandery of which testator was a member for parading at the funeral.

Appeal from a judgment of the supreme court,, general term, fifth department, entered on an order affirming a decree of the surrogate’s court of Monroe county.

The record presents the proceedings had.qpon therfinal judicial settlement of the accounts of Mortimer F. Reynolds,, as executor of the last will and .testament of Abelard Reynolds, deceased. The decree in which such proceedings finally resulted proved un

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satisfactory to the executor and "appellant in two respects. , 1st It decreed that certain stocks, bonds, leases and bank books of the value of about $12,000, which were in a safe in th'e-Arcade at the time of" testator’s death, did not pass to Mortimer F. Reynolds individually under the third clause of the will, but became a part of the residuary estate provided for by the fifth clause. 2nd. It adjudged that the payment "of "$250 by the executor to the Monroe Commandery was not chargeable against the estate" as part of the funeral expenses.

The will of Abelard Reynolds provided as follows: First. I give and devise to my wife Lydia S. Reynolds, the homestead where I now reside, on Fitzhugh street in said city of Rochester, with all the lands, privileges and appurtenances thereto belonging or appertaining, to have and to hold the same to her own use during the continuance of her natural life.

iSscond. I give and bequeath -to my said wife" all the "provisions and supplies of every kind which may be on hand" at my said homestead at the time of my decease, and the "use during her life of all the household furniture,, goods, horses, carriages, harnesses and all other personal property (other than money, choses in action and securities)which shall be in or upon the premises at my said homestead, or habitually kept there, at the time of my decease.

Third. I give, devise and bequeath to my son, Mortimer F. Reynolds, my property situated upon West Main street (formerly Buffalo street) in said city of Rochester, extending through to Exchange Place in the rear, known as Reynolds’ Arcade, including also East Arcade (so called) with all the lands, buildings and appurtenances thereunto belonging or in any wise appertaining, and including all the furniture and personal property in and upon the same, or in any manner connected therewith, to haveand to hold the same to his Own use and -benefit forever; subject, however, to the payment of the following sums, which are hereby made a distinct charge thereon, viz.: An annuity of'$3,000 to my said wife, to be paid to her in four equal quarterly payments from and after my decease, in each year, during the continuance of her natural life. Also the sum of $50,000, with annual interest-thereon from the time of my deceaise, to my granddaughter, Clara L. Amsden, and the like sum of $50,000, with like interest, to my granddaughter, Sophia 0. Strong, tobe paid to them, respectively, as follows, -viz.: In annual instalments of at least $10,000 per annum to each of them, to be applied first to the payment of the interest which may be then due, and the residue upon the principal, until the whole is paid; the first instalment to be paid at the expiration of one year from the time of my decease, with the privilege,-however, of paying-a greater amount at any time, to the extent-of all that may remain due and unpaid.

Fourth. In case my said wife should -refuse -to accept the-foregoing provisions made in her behalf, which, -if accepted, are intended to be in full satisfaction and discharge of her right of dower, and of-all other interest or claim which she may have in or upon" any portion of my estate,- real - or personal, then, and in that

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case, ‘only two-thirds of the aforesaid sum of $50,000, bequeathed to each of my. granddaughters, with the interest thereon, that-is., upon the said two-thirds, shall be payable during the lifetime of my wife; but, upon her decease, all that may remain unpaid of the whole bequest of $50,000 to each of- my said granddaughters, with interest • thereon, shall become due and payable, and the instalments hereinabove provided for shall" be continued until the whole is paid. No interest; however, is to be computed or paid upon the one-third, payment of which is suspended during the life of my said wife, except from and after the time of her decease.

Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my said son and. executor, Mortimer F. Eeynolds, in trust, to sell and dispose of the same and convert the whole into money or into good and safe-securities, and out of the proceeds to pay first, to my granddaughter, Sophia 0. Strong, a sum which, when added to the advances made to her either by myself or my deceased son, William A. Eeynolds, in his. life time, and now charged upon my books, shall. be equal to the advances ■ similarly, made to my granddaughter, Clara L. Amsden, also charged upon my books; and -after • such payment to pay to" himself, or retain out of .the residue of such, proceeds, a sum which, when added to the - sum .charged against him, the said Mortimer F. Eeynolds, upon my books, shall be equal to the sum so advanced to each of my granddaughters. The remainder of the trust funds to be realized from -the sale herein directed to be divided equally between my two granddaughters, one-half to each. -

The furniture and personal property, the use of which is given in connection with the homestead to my wife, is not,-however, to-be sold, in case she accepts the provisions herein made for her - benefit, until after her decease, and whenever sold the avails are-to be divided equally between my said granddaughters.

Sixth. At any sale which may be made in pursuance of the foregoing directions, the said Mortimer F. Eeynolds is to be permitted to bid and to have the same right and privilege of becoming a purchaser as if he were not named or acting as trustee.

Seventh. As I have already provided for my sister, Mary, by gifts heretofore made, I make no further provision for her in this will:

Lastly. I hereby constitute and appoint the said Mortimer F. Eeynolds sole executor of this my last will and testament.

Theodore Bacon, for app’lt; Spencer Clinton, for resp’t.

The testator’s office was in the building devised to his son by the third subdivision of the will; connected with it was a vault; and within the vault a safe in which money and securities were kept.. When he died a bank book, certain securities of different kinds and money were there. These the appellant contends passed to him under such subdivision, by which 'the testator devised to him, subject to a charge, the “ Arcade, * * * ineluding all the furniture and personal property in and upon the same, or in any manner connected therewith.’’ -And he challenges'

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the determination of the surrogate’s court that a proper construction of the will limits the bequest to such personal property in addition to furniture as properly belongs to and was employed by the testator in the use which he made of the building devised.

Our attention has not been called to any authority in this state which can be made serviceable in determining the question presented. But in England and in several states in this country the courts have had under consideration the rule which should guide the court in determining whether general words following an ■enumeration of .articles in a bequest should be limited to things of the same general character as those enumerated, or be given the most enlarged meaning of which they are capable.

Appellant’s counsel calls special attention to Campbell v. Prescott and Hotham v. Sutton, 15 Ves., 500 and 319. In Campbell's case the court refers with approval to the observation of Lord Mansfield that the word “effects” is equivalent to “property” or “worldly substance.” And in Hotham's case the words “ other effects,” in the connection in which they were there used, were held not to be restricted to things of the same kind as those specially enumerated.

In the first case the general words following an enumeration occurred in a residuary disposition, and in such cases the settled rule is that they will be given the broadest and most comprehensive meaning of which they are susceptible, in order to prevent intestacy as to any portion of the testator’s estate.

In the latter case the testatrix, having two sons and a daughter, B., G. and D., bequeathed for their benefit a sum in consols, and gave all the residue of her personal estate to her youngest children, O. and D. On the same day she executed a codicil and revoked •so much of her will as related to the bequest to her son 0. of a share of her “ plate, linen, household goods and other effects '(money excepted),” and gave the whole thereof to her daughter.

It was held that the words “ and other effects ” were not restrained- by the prior terms to articles ejusdem generis, and therefore the revocation extended to the general residuary personal estate. Lord Eldon, in delivering the opinion of the court, declared the doctrine to be settled that the words “ other effects in general mean effects ejusdem generis." But held the rule not applicable to the case under consideration, because the exception made it apparent that the testatrix did not so understand it. He said “ money cannot be represented as ejusdem generis with plate, linen and household goods. The express exception of money out of the ‘ other effects ’ shows her understanding that it would have passed by those words; that express words were required to exclude it; and by force of the exclusion in the excepted articles she says she thought that the words of her bequest would carry things not ejusdem generis.” ■ ■

In Swinfen v. Swinfen, 29 Beav.; 207, the will recited : “ I give to Mrs. Swinfen, my son’s widow, all my estate at Swinfen or thereto adjoining; also all furniture and other movable goods here.” It did not contain a residuary clause. And it was held that the general words were not restricted to things ejusdem generis.

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And therefore the live stock and implements of husbandry on the lands, as well as money in the house at testator’s death, passed to-the legatee.' ' '

_ In Michell v. Michell, 5 Mad., 69, the bequest was of “ all and singular his plate, linen, china, household goods and furniture and effects that he should' die possessed of.” The court said that, while the words furniture and effects are frequently used in a restricted sense, meaning goods and movables, that the fact that the word furniture was preceded by the word “and,” and “effects” followed by the phrase “that he should die possessed of,” leads to-the conclusion that it was used in a more enlarged sense and embraced all his personal estate.

In Fleming v. Burrows, 1 Russ., 276, the bequest was to testator’s son of “ my furniture, plate, books and live stock, or what, else I may then be possessed of at my decease.” It was followed by a few specific bequests, and the question was whether the general residue of the testator’s property passed to the son. It was urged that the word “then” was evidently-written by mistake-instead of “ there ” ; that it should be read as intended; and if that be done, the bequest having reference to locality must be treated, as specific and not general. The court did not agree with such contention, and held that it disposed of the entire personal estate,, remarking in the course of the opinion that the instrument- contains no residuary clause unless the words “ or what else I may then be possessed of at my decease ” are to be so construed.

In Re Scarborough, 30 L. J. Prob., 85, the bequest was of “ all my personal effects, and everything of every kind that I-' now have or may have at the time of my decease in my apartments at the above named 13 Plaistow Grove West, or elsewhere.” "Upon the application for letters of administration a- doubt was suggested' whether the personal estate of testatrix, not in her apartments in Plaistow Grove or other apartments, was, embraced in the-bequest or passed to the. next of kin because as to it she diedin,testate. It was held that the words “or elsewhere” referred not to the.locality of apartments, but to the effects, of deceased, and disposed of all the personal estate.

In Taubenhan v. Dunz, 125 Ill., 524 , the bequest to the devisee and legatee- named in the will was as follows: “Also $3,000 in money to be paid to her by my executor; also all the loose property in, on and around the homestead, consisting of one, cow, two hogs; and a lot of wood, and all property of every kind.”

The testator owned other promissory, notes for money.loaned., It was held that as to them he did not die: intestate; that they passed to the legatee under the. will. In Mahony v. Donovan, 14 Irish Ch, 262-388, a bequest of “-all my right and title, to my ■property in the- town of R., namely, my dwelling-house and household furniture, and all things therein, especially my car horse and- covered side- cars,” was held to pass, bank notes; known by th,e.testator to be in the house at toe time.the-will' was- made. The Master, off the. Rolls, m the course of his opinion, said: “It is also to be observed that there, is no, residuary clause, in. this will,

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and the court is disinclined to put such a construction, on a will as will-lead to an intestacy as to part of the property.”

We have now' referred to the cases cited by the learned counsel for the appellant in support of his contention, and it .will be observed that in every case, excepting Hotham v. Sutton and Michell v. Michell, in which the court held that the general words preceding or following enumerated articles should not be limited to things ejusdem generis, they either occurred in a general bequest of the whole of testator’s estate, in a residuary clause, or the will did not contain a residuary disposition. With the exceptions thus noted it seems to me a settled rule of construction that when certain things named are followed by a phrase which -need not, but might be construed to include other things, it will be confined to articles of the same general character as those enumerated. Johnson v. Goss, 128 Mass., 434 ; Dole v. Johnson, 3 Allen, 364 ; Spark's Appeal, 89 Pa. St., 148 . Hotham v. Sutton, supra, recognizes and asserts this rule of construction, but held it not applicable there because of an exception which manifested that the testator thought otherwise. In Jarman on Wills, 760, after considering various English decisions in which it was held that general words would not be limited to things ejusdem generis, the author said: “ It is to be observed, however, that in all the preceding cases there was no other bequest capable of operating on the general residue of the testator’s- personal estate, if the clause in question did not.' Where there is such a bequest it supplies an argument of no inconsiderable weight in favor of the restricted construction which is there recommended by the anxiety always felt to give to a will such, a, construction as will render every part of it sensible, consistent and effective.” He alludes in that connection to Woolcomb v. Woolcomb, 3 P. Wms., 112, Cox’s ed., where the testator bequeathed to his wife “ all the furniture of his parsonage house, and all his plate, household goods and other goods (except books and papers), and all his stock within doors and without, and all his corn, wood and other goods belonging to his parsonage house,” and gave the residue of his personal estate to J. S. The question was whether - ready money cash and bonds would pass to the wife ? The court refused to give to the general words their broad meaning, but restricted them to goods ejusdem generis, inasmuch as a different construction would, operate to frustrate the-bequest of the residue.

Applying then the rule of construction deducible- from the authorities, it may be conceded that if there were no residuary clause,fin the, will,.so that as to the money and securities, of the amount and value of $12,000, Abelard Reynolds would have died intestate unless it should, be held to have passed by the bequest, the words “'and personal property in and upon the same or in any manner connected therewith,” would be given the most comprehensive meaning of'which they are susceptible for the purpose of"preventing intestacy as to a portion of the. estate.. But,there is a residuary clause. In the fifth provision the testator says-: “I give, devise and bequeath all the rest, residue and. remainder of

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my estate, both real and personal * * * in trust to sell and dispose of the same and convert the. whole into money or into good and safe securities,’[1] and after directing that out of the proceeds there should be paid to Sophia 0. Strong and Mortimer F. Reynolds each such sum as, added to their respective advancements, will place them on an equality with the advancement made to Clara L. Amsden, he directed that the remainder be divided equally between his two granddaughters.

A case is therefore presented which requires the general words in the bequest to Mortimer F. Reynolds to be limited to things ejusdem generis. Such must be deemed to have been the intention of the testator. Indeed it is difficult to conceive that he could have intended otherwise in view of the fact that it would have substantially resulted in a. disappointment of the residuary disposition.

In the second subdivision of the will the testator bequeaths to his wife for use during her life “ all household furniture, goods, carriages, ■ harness and all other personal property other than money, choses in action and securities, which shall be in or upon the premises at my said homestead or habitually kept there at the time of my decease.” And the appellant insists that the omission to make a similar exception of “money, choses in action and securities ” in the third subdivision must be taken as an indication of his intention to give to the words “ personal property ” therein their most comprehensive meaning. That fact is not controlling, bnt is a circumstance to be considered in connection with the whole will in the effort to so construe it as to give effect to the intention of the testator. And our conclusion in that regard is in accord with the result reached by the learned surrogate.

The refusal to credit the executor with the sum of $250 donated to a commandery of which testator was a member for parading at the funeral was not error. Mo reason is offered for this attempted charge against the estate. It does not appear that such sum or any other was required as a condition of participation on the part of the commandery. It was a mere gratuity on the part of the executor, which he then or subsequently concluded to permit the residuary legatees to assume.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.