In re the Judicial Settlement of the Accounts of Lee — 48 N.Y. St. Rep. 352

Majority

p. 352

In the Matter of the Judicial Settlement of the Accounts of John E. Lee, Executor.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1892.)

Headnote

Will—Construction—Bequest of demands against legatee.

Testatrix by her will bequeathed to L., who was named executor, “all debts, dues and demands of eveiyname, nature or kind soever I hold against L. and his wife," and, with a few small exceptions, gave all the residue of her estate to her infant son. Several years prior to the execution of the will, L. and wife gave a bond and mortgage of $1,200 to F., who assigned them to testatrix, and L. and wife conveyed the property so-mortgaged to C., subject to the mortgage. At the time of the execution-, of the will L. and wife were indebted to testatrix in various sums in addition to the bond. The entire estate amounted to about $6,000. Held, that the bequest to L. did not include the bond and mortgage.

Appeal from a decree of the surrogate’s court of Allegany county, judicially settling the accounts of the executor of the will'of Carrie E. Dwight, deceased.

The decree was entered February 9, 1892, and determined that the sum secured to be paid by a bond and mortgage given April 3, 1885, by John E. Lee, the executor, and his wife Emma A-Lee, to Edward J. Farnum, and by Farnum assigned to the testa

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trix, did not belong to the executor, and that he should account for the same as an asset of the estate.

On the 11th day of July, 1889, Carrie E. Dwight, then residing at Wellsville, N. Y., made and published her last will and testament, and in the month of October following she died. The will was duly admitted to probate; it provided for the purchase of a lot in the cemetery, the erection of a suitable headstone, the payment of funeral charges, and expenses of administering the estate, the payment of her debts, and bequeaths her property as follows : “ I will, devise and bequeath to Effie Dwight my organ, family Bible, one set of silver teaspoons, one bed and bedding. 1 will and bequeath two oil paintings and willow rocking chair to Mrs. Nett Goff, of Potter county, Pa. I will and bequeath to my sister, Mrs. Nina Hulbert, all my wearing apparel. I will and bequeath to John E. Leo all debts, dues and demands of name, nature or kind soever I hold against him and his wife, my trunk, and any keepsakes he may wish. I will, devise and bequeath to my dear and beloved son, Joseph N. Dwight, my gold watch and chain, best bed room set and bed complete, silver plated knives and forks, and all the rest, residue and remainder of my estate, except the remainder of my household furniture, which is to be divided as my executor thinks best, or sold. In case the same is sold, the proceeds to belong to my son.” The will then provides for the appointment of a guardian to take charge of the property for the son, and invest the same, and pay to him - yearly, or oftener, the interest, for his education and support, and appoints John E. Lee-executor.

Mrs. Dwight was, at the time of making her will and at her death, a widow. Joseph was her only child and only next of kin. Her estate was worth about seven thousand dollars.

It appears by the decree entered, that after allowing for all the increase, the total amount of the property to be distributed, including the bond and mortgage in controversy, was $5,994.20.

In April, 1885, Mrs. Lee and her husband, John E. Lee, gave-to Edward J. Farnham a bond conditioned to pay the sum of $1,200, and as collateral thereto gave a mortgage upon lands in Pennsylvania. In September, 1887, Farnham assigned the bond and mortgage to the deceased, who continued to own the same until the time of her death. In April, 1888, Mrs. Lee and her husband conveyed the mortgaged lands to S. E. Crittenden. Crittenden retained out of the purchase price of the land a sum equal to the amount of the mortgage with interest. On the 12th of April, 1889, Crittenden • paid to John E. Lee, as agent for the deceased, twenty-five dollars to apply upon the interest on the mortgage.

Mrs. Lee was indebted to Mrs. Dwight at the date of the will in the sums of $170 and $53, in addition to her indebtedness-upon the bond aforesaid. Mr. Lee owed the deceased at the time of her death seventy-five cents. There was unpaid upon the; bond and mortgage at the date of the inventory $1,246.

Caleb S. Hall, for app’lt; Clarence A. Farnum, for resp’t.

The question is, were the bond and mortgage included in the bequest to John E. Lee?

It is true, as contended by the appellant’s counsel, that the language of the will is sufficiently broad to carry the bond and mortgage to Lee, but we are at liberty in giving construction to this provision to look at th^ surrounding circumstances, the situation, condition in life of the testatrix, the amount of the -estate, and the condition of those naturally dependent upon her bounty.

Where there are two equally probable interpretations of the language of a will, “ that one is to be adopted which prefers the kin of the testator to strangers." Quinn v. Hardenbrook, 54 N.Y., 83 ; Wood v. Mitcham, 92 id., 375.

Words in general, whether technical or popular, are to be taken in their plain and usual sense unless a clear intention to ■use them in another sense can be collected and that sense as■certained. Schouler on Wills, § 472.

A broad or restricted meaning may be given words to arrive at the intention. The terms that are used in a will are to be construed according to the ordinary acceptation of language in the transactions of mankind. Williams on Executors, § 1080.

The bequests to Effie Dwight, who we assume was a relative of the deceased, and to her sister and Mrs. Goff, were of small value.

She was providing in her will for the education and support of her only child, twelve years of age. The amount that she could leave him in any event was small; his welfare was undoubtedly the chief thing she had in mind. Mo reason appears why she should give to Mr. Lee, who, so far as appears, had no claim upon her bounty, nearly one-fourth of her entire estate. Had she intended to bequeath to Lee the bond and mortgage she would naturally have mentioned them specifically. A person learned in the law would-have understood that the words used included the bond which represented the indebtedness and carried the -mortgage given as collateral to it, but it may well be doubted if Mrs. Dwight so understood it.

Mrs. Dwight knew that the real estate upon which the mortgage was a lien had been transferred to Crittenden. He had, "three months before she made her will, paid interest thereon to Mr. Lee, the testatrix’ agent. We assume that he paid it to Mrs. Dwight, as it was his duty to do. Knowing that Critten■den had purchased the land upon which her mortgage was a lien, .and that he intended to pay the mortgage, she undoubtedly had been informed that he had retained from the purchase price a sum equal to the amount of the mortgage, under the circumstances she would naturally.look to him as the person to pay the mortgage and not to Mr. and Mrs. Lee. The language used in the be•quest to Lee, to the comprehension of a person in- the station of life of Mrs. Dwight, would include only the indebtedness of Mr. and Mrs. Lee mentioned, amounting to $200, and a small amount ■due from Lee. As she intended to make Mr. Lee the executor of lier will, she was willing to forgive him and his wife their- in

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debtedness to her, but had not in mind, we think, to include the= bond and mortgage. Such a purpose on the part of the testatrix would excite surprise and inquiry as to her reasons, for giving so large a proportion of her estate to one having, so far as appears, no, claim upon her bounty, to the detriment of a son whose welfare we must assume was a matter of solicitude to her.

This construction makes the plan and purpose of the will harmonious.

The construction given to the will by the surrogate meets with our approval, and the decree appealed from should be affirmed,, with costs to the respondent, to be paid out of the estate.

Dwight, P. J., and Macomber, J., concur.