Glover v. Glover

by me, save and except so much of the will made by me in the United States in or about the year one thousand eight hundred and seventy, shortly after my marriage to my said wife, as is not inconsistent with .the present will, it being my desire and intention that, subject to the provisions of this present will being in the first instance fully observed and carried out, my said previous will shall still remain in full force.” Both wills were proven as one instrument. By the first will the testator gave $500 to George B. Glover, the plaintiff, and as to this sum the only question is whether the legacy is a general legacy or is payable out of certain specific securities. The testator prefaces a list of legacies by a statement that he has “ at present” certain securities which are stated in the will, showing a net sum of $30,214. The will then states as? follows, “ This sum I give bequeath and dispose of as follows, toS; wit:” The legacies are then bestowed and “all the rest, residue and remainder of my personal estate as shown in the foregoing statement to my beloved wife, Lucy.” The testator then mentions that he has a further sum due him from the Chinese government and “when this is collected ” he bequeaths and disposes of the amount as specified in the will. The legatees are then named, and among them the plaintiff is given $100. The remainder of all testator’s personal estate is then given to his wife. By this will the plaintiff took a general legacy as to the $500. The testator intended to dispose of all his property and the enumeration of it in the will did not make'the legacy specific. Plaintiff got no interest in any of the securities named. The case is very similiar to Giddings v. Seward, 16 N. Y., 365 . In that case a bequest of $1,100 and interest upon it contained in a bond and mortgage described in the will is held a general legacy and not subject to ademption by the extinction of the bond and mortgage in testator’s life-time.

y So in Tifft v. Porter, 8IST. Y., 516, a gift of bank stock in different proportions to two legatees was held general without a statement that the shares were to be taken from those owned at his death. The proof established that the debt due the testator from the Chinese government was paid to him in his lifetime. It was also proven that the executrix had received and there was in her hands enough to pay both legacies to the plaintiff. There is no good ground to" question the appropriation of the estate by defendant individually. She denies that there are any legacies due to the plaintiff and avers that she has not appropriated the estate except so far as the same has been bequeathed to her. She claims the estate to have been given to her by a gift of the securities named in the first will. Code, § 1819.

Judgment should therefore be affirmed, with costs.

Dykman, J., concurs ; Cullen, J., not sitting.