In re Judicial Settlement of Logan

$1,000, for the purchase and improvement of the half of a burial plot in the same cemetery, in which the remains of himself and. wife are to be interred. Then follows the residuary clause, over the construction of which this controversy has its origin ; in which he directs his executors to sell all his real estate not specifically-devised and, to quote the precise language used, “ with the proceeds arising from such sales to pay and discharge in full the; several legacies hereinbefore given and bequeathed. After the payment and satisfaction of the aforesaid legacies, should there be any of such proceeds remaining, then and in such case, I direct, my said executors to pay over and divide such remaining sum to- and among the legatees mentioned in this my will, to whom I hereby give and bequeath the same, share and share alike.” ■

It appeared upon the final settlement of the accounts of the executors before the surrogate of Kings county, that the net residuum of the sales of the real estate, after paying all the general legacies in full and the expenses of administering the estate and commissions, amounted to the sum of $11,302.69; and the question arose as to its proper division and distribution. The executors, insisted that it should be divided into seven equal parts, and that they were entitled to take, hold and dispose of one of such parts-in their trust capacity and upon the same trusts as aré prescribed in the fifth clause of the will. Mrs. Clanny and her daughters, upon the other hand, claimed that the fund should be divided into nine equal shares and that they should each have one of such, shares, making the aggregate amount received by them three times that allotted to the widow or any one of the other collateral branches of the testator’s family. The surrogate adopted this view and decreed accordingly. Upon an appeal by the executors-the general term made an order modifying .this decree so as to-divide the fund into seven equal shares and directing one of such shares to be paid to Mrs. Clanny. Her daughters now seek to-secure a reversal of this order.

We-are constrained to differ with both the surrogate and the-supreme court, and to' hold that while this residuum should be divided into seven equal parts, one of such parts should not be-paid to Mrs. Clanny, but should be given to the executors and be held by them upon the same trusts as the legacy of $3,000, which they are required to hold for the benefit of herself and her daughters. In a strict legal sense the executors ar.e the legatees to whóm the moneys disposed of by the fifth-clause are given. Under our statutes the entire estate in the property bequeathed is vested in them for the time being for the purposes of the trust They take jointly, or as onejperson, and not in severalty. Mrs. Clanny takes-no part of the principal of the estate given; nothing but the income, and the gift to her daughters is not to take effect until after • her death. It is reasonable to assume that when the testator, in the thirteenth clause, speaks of “ the legatees mentioned in this-my will,” he had reference to the persons in whom the immediate; title to the legacies given were vested by its previous provisions.

It is undoubtedly true, as the counsel for the appellants argue,, that where the meaning of the testator is apparent from the lan

guage used, the plain import of the language cannot be departed, from, and that words in a will are generally to be deemed to have: been used in their ordinary and natural sense; but there is another canon of testamentary construction equally well recognized, that when words are descriptive of a class of beneficiaries, their scope and application may depend, in a large degree, upon the apparent scheme of the will and the signification in which they, or kindred words, are. used in it elsewhere. They may be enlarged or restricted as may best comport with the evident intention and purpose of the testator.

There are many apt illustrations of the application of this rule.. In Cromer v. Pinckney, 3 Barb. Ch., 466 , and Brower v. Bowers, 1 Abb. Ct. App. Dec., 214 , it was held that the words •“ nephews and nieces ” should be construed to mean not only grand-nephews, and nieces, but even a great grand-niece.

In Bowne v. Underhill, 6 T. & C., 344, the term “ children was made to include grand-children; in Prowitt v. Rodman, 37 N. Y., 42 , it was declared that it may include issue however remote-' and will include such issue whenever the reason of the thing demands it; in Low v. Harmony, 72 N. Y., 408 , the term was in one clause of the will held to exclude grand-children and in another clause to include them; and in Gelston v. Shields, 78 N. Y., 275 , the word was limited to children of the testator by his reputed wife and was held not to include his children by his lawful wife. So the word “ heirs ” has been limited to children, Scott v. Guernsey, 48 N. Y., 106 , and the heirs of a particular person to the heirs of his body. Kiah v. Grenier, 1 T. & C., 388. In Weeks v. Cornwell, 104 N. Y., 325 ; 5 St. Rep., 632 , this court held that the term “ legatees ” meant the devisees of the real estate who had only a life interest therein and excluded the remainder-men; and in Sholl v. Sholl, 5 Barb., 312 , the words “ all the legacies before mentioned,” in the will, were held to mean the legacies which were chargeable upon the real estate and no others.

Many similar cases might be cited, but these are enough. It is unnecessary to allude to the special circumstances which controlled the decision in each case. They were always of such a character as to afford rational grounds for the conclusion that the-words construed were used in the enlarged or the restricted sense attributed to them.

The effect to be given to testamentary language cannot depend upon conjecture, much less upon judicial caprice. It must stand upon some sound principle of interpretation, and, in the present case, we ought to give to the terms employed an application which will preserve the harmony of the scheme plainly outlined in the will. The first thing which impresses us upon reading that instrument is the absolute impartiality of the favors shown by the-testator to the different collateral branches of his family in disposing of the bulk of his estate. Each branch is given through its chosen representative exactly the same sum. It is not to be inferred that the testator intended to break up this equality of distribution in disposing of the residuary estate. For some undisclosed reason he selected his executors as the recipients, in the-

first instance, of the legacy given for the benefit of Mrs. Clanny -and her daughters, and it is probable that the same reason would have been equally potent in determining the direction which the share of the residuary fund intended for her family should take. It is not likely that he would have given to them, unprotected by any trust, a sum which, if the appellants’ contention is upheld, would amount to nearly one-half of the legacy in trust

It is also to be observed that the main .object of the conversion of the real estate into money is to provide the funds for the payment and discharge in full of the several legacies given in the previous provisions cf the will, one of which is the legacy to the executors, and when in the same clause he directs that if, after the satisfaction” of such legacies, there should be any residue it should be equally divided between the legatees mentioned in the will, he evidently had in mind the same persons to whom the general' legacies were to be paid, who in the fifth clause, as we have seen, .are the executors as trustees, and not the beneficiaries of the trust.

The order appealed from should be modified so that the part therein directed to be given to Jane Clanny be paid to the executors, to be held and disposed of by them upon the same trusts as the legacy in the fifth clause of the will, and, as so modified, the •order should be affirmed, with the costs of both parties upon this appeal to be paid out of the residuary estate.

All concur.