Sweet v. Burnett — 47 N.Y. St. Rep. 766

Majority

p. 766

George Sweet, Ex’r, Resp’t, v. Henry K. Burnett, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Will—Construction.

Testatrix, by her will, bequeathed legacies out of “money of my husband’s

p. 767

estate now belonging to me,” and the residue to her husband’s nieces and. nephews. The husband's estate had been left to the testatrix, and consisted of moneys on deposit, securities and a farm; the personal estate be-in»- still in the hands of the husband’s executor. Held, that as she would' take her liusbaud’s personalty in the form of money, the proceeds thereof were properly described as such and would pass under the bequest in her will; but that the farm would not pass thereunder.

Appeal from judgment in favor of plaintiff.

Action for the construction of a will.

L. B. Sackett, for app’lt; Herrick & Losey, for pl’ff-resp’t; P. E. Ackert, for resp’ts Maria Decker and Mary Burnett; F. L. Akerly, for resp’t Harvey Hicks; S. K. Phillips, for resp’t Caroline Gifford; Fred. E. Ackerman, for resp't Jane Murphy; Hufcut & Travis, for resp’ts Obed Rozell and Josephine McElwin; William Downing, for resp’t Wyman Rozell; Allison Butts, for resp’ts Stephen and Samuel Rozell; Hackett & Williams, for resp’t Elizabeth Ro zell; Lewis Baker, for resp’t Mary J. Heermance.

—The question presented in this case is what passes under the term “ money ” in the second paragraph of the testatrix’ will. That paragraph is a^follows:

“ From the money of my husband's estate now belonging to me, I desire that all my funeral and other expenses be paid, and out of the same I give to Bobert Nickerson the sum of one hundred dollars; to Francis Nickerson the sum of one hundred dollars. The residue of said money I wish to have divided equally between, my husband’s nieces and nephews.”

The testatrix’ husband had died ten months prior to her own decease, leaving all his property, real and personal, to his widow. The husband’s estate consisted of a deposit in the savings bank, notes due him, some articles of household furniture, farm products1 and the like, and a farm. At the death of the wife the husband’s personal estate was still in the hands of his executor. In Smith v. Burch, 92 N. Y., 228 , is to be found an extensive review of the authorities on the construction of the term money. The rule enunciated by the court is, that ordinarily, standing alone, the term means only that which passes current as money, including bank deposits; but when read with the context of the will it may be held to include any kind of personal property. We think that the testatrix intended by the word money in this will to include all the proceeds of the personal estate of her husband. The estate has not been settled. It was the duty of the executor to convert the personal property into money, and the widow would receive it only in that form .unless by agreement with the executor to the contrary. The sums in the different investments might vary before the estate was transferred to her from causes entirely independent of her acts. The executor might use the moneys collected on the notes, or those deposited in the savings bank, to pay debts or charges against the estate. The testatrix must be assumed to have known how her own funds were invested, but not necessarily the investment of her husband’s property. But the dominant consideration with us is that in law she would receive the personal estate of her husband as money and, therefore, those proceeds are

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properly described as such. But we think there is not sufficient in the will to show that the testatrix intended by the use of the Word “ money ” to pass the farm devised to her by her husband, even assuming the word “ money ” could under any circumstances be given such a comprehensive meaning. The only authority justifying such an interpretation is Estate of Miller, 48 Cal., 165 . This case is cited in the opinion delivered in Smith v. Burch, supra, but the court of appeals in its own declaration of the rule of construction limits money to personal property.

The judgment appealed from should be modified so as to declare that the farm of the testatrix does not pass to the husband’s nephews and nieces, but descended to the testatrix’ brother and heir-at-law, the defendant Burnett.

In other respects the judgment should be affirmed, without sosts of this appeal to either party.

Dykman, J., concurs; Barnard, P. J., not sitting.