Ball v. Dickson — 64 N.Y. St. Rep. 850

Majority

p. 850

Frank Ball et al., Individually and as Executors, etc., App’lts, v. Charles Dickson et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed December 27, 1894.)

Headnote

Will—Construction.

A devise of a fatin “ together with ail personal property upon said farm,” was held not to include promissory notes, certificates of deposit and bank pass books in a safe in the dwelling house on the farm at the time of the execution of the will, where no reason appears for favoring the devisee to such extent, but, if the notes, etc., are allowed to pass under the residuary clause, it will effect an equal distribution among testator’s next of kin.

Appeal from a judgment construing a will.

J. D. Teller, for app’lts; Edmin G. Davis and James Lyon, for resp’ts.

This action was brought by the plaintiffs, individually and as executors, to secure a construction of the will of the testator, the material parts of which are as follows :

“I give, devise, and bequeath to my nephew William I. Ball the farm on which I now reside, containing about one hundred and forty-four acres of land, together with all the personal property upon said farm, including all the personal property in the house and in the other buildings on said premises, subject, however to a bequest of $2,000 to Frank Ball. I give and bequeath to Frank Ball $2,000, to be paid as above set forth. I give and devise to the children of Moses Dickson, deceased, the Oakland real estate, in the town of Brutus, of which I own an undivided three-fourths. The value of said three-fourths interest I place at $3,000 for the purposes hereinafter set forth.' I give, devise, and bequeath all the rest and remainder of my real, personal, and mixed estate, share and share alike, to my brother Charles Dickson, my sister Jennette Ball, the children of my brother Aaron

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Dickson, deceased (which shall represent one interest); the children of my brother Moses Dicksen, deceased (wnich shall represent one interest); but out of the interest of the children of Moses Dickson, deceased, shall be deducted the sum of $3,000, the value of the Oakland real estate which shall be so much payment of the share bequeathed to said children. In addition to the sum of $2,000 bequeathed to Frank Ball, I give and bequeath to him the further sum of $3,000, to be deducted from the sum bequeathed to the children of Moses Dickson. For the purpose of carrying out the provisions of this will, my executors are authorized to sell such securities as they deem, best.”

Frank Ball and William I. Ball were appointed executors of the will. The testator was a bachelor, and resided upon 'the farm mentioned, located in Cayuga county. Upon the farm were the ordinary stock and farming implements, the household furniture, and a small amount of products of the farm in the barns. The personal property mentioned upon the farm was of the value of about $1,500. It does not appear from the record what the farm was worth. He owned a thrée-fourths interest in the Oakland property, and in addition thereto bonds and mortgages, of the value of $37,815.51; promissory notes, certificates of deposit, and money in banks, amounting in value to $16,161.42. The testator had, some time prior to the execution of his will, delivered to his attorney a part of the bonds and mortgages, and the balance of them he delivered to him the day prior to the execution of his will. The promissory notes, certificates of deposit, and pass books, representing the money in bank, were at the time of the execution of the will in a safé at the testator’s dwelling house upon the farm. The will was executed on the 16th day of February, 1892, and the testator died on the 14th day of March following. Frank and William I. Ball were nephews of the deceased.

It is the contention of the appellants .that the contents of the safe were, by the first clause of the testator’s will, bequeathed to the .plaintiff William, and that is the principal question presented for our decision. The trial court held that they did not pass under the will to William, but were disposed of by the residuary clause of the will, atid we agree with the construction given to the will by the trial court. The evidence tended to show that William had assisted the deceased to some extent about the farm and was with him during his last sickness. While there is no direct evidence as to the value of the farm, a general description of it is given by the evidence. It seems to be an ordinary country farm. If the testator intended to give to William the contents of his safe, be was giving him about one-third of the entire value of his estate. We naturally look to see the reason for his bestowing upon William so large a part of his property, and nothing appears in the record throwing any light upon that question. Ho reason is apparent why William should have been so highly favored as his contention would imply. The plaintiff Frank Ball was a brother of William. The deceased left a living brother, two sisters, and. the children of two deceased brothers. If the contents of the safe

p. 852

are to be held to be disposed of by the residuary clause of the will, the deceased would seem to have made an equitable and reasonable disposition of his property. If we should give to the words "personal property,” in the first clause of the will, their broadest and most comprehensive signification, they would undoubtedly carry the contents of the safe. Property is divided into two general divisions, real property and personal property. Had the will failed to dispose of the contents of the safe by the residuary clause, there are authorities justifying the giving to such words their broadest meaning, but we are not required to adopt that rule here, for, as stated, if the property in question was not bequeathed to William, it passed to the legatees mentioned in the residuary clause. In construing the clause in question we are to ascertain, if possible, the intention of the testator. William had assisted him to some extent in the management of his farm, and it was quite natural that he should desire to give it to him. To carry on the farm he needed the stock, farming implements, products of the farm, and the household furniture. The testator, we think, had in mind in framing the clause in question that class of property. Had he intended to give to William the contents of the safe, he would, we think, have specifically described them in language ordinarily used in describing that kind of property, and especially as their value composed so large a part of his estate. In speaking of such property, laymen do not ordinarily call it “personal property.” They designate it as “promissory notes,” “certificates of deposit,” and “money in bank.” Had it been the intention of the testator to give the contents of the safe to William, we think he would have given a particular description of the property in language that would not be likely to be misunderstood. He authorized his executors by the will to sell such securities as they should deem best for the purpose of carrying out the provisions of the will. Had he intended that William should own the contents of the safe, he would naturally have designated the securities which the executors were to sell, and excluded the promissory notes in the safe. We are referred to many authorities, both in England and in this country, where questions somewhat similar have been passed upon. The current of the authorities is in harmony with the construction which we give to this clause. In the case of In re Reynolds, 124 N. Y. 388 ; 36 St. Rep. 332 , construction is given to the language of a will somewhat analogous to the case at bar, and is an authority sustaining the conclusion we have reached. Many of the cases to which we are referred by the appellants’ counsel, where a broader meaning was given to similar words, were cases where, if the words were held not to carry the property, the testator would have died intestate as to the property in question, and that is to be avoided, if possible; for the presumption is that testators intend to dispose of all their property by their will, unless the contrary intention plainly appears.

That portion of the testimony of the attorney Shertleff, which was received under objection and without prejudice to a motion to strike out, was, we think, incompetent, and was properly Stricken out. It consisted of communications made to him by the

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testator in the coarse of his professional employment, and it was not made competent by section 836 of the Code of Givil Procedure. The testator having given to the children of Moses Dickson his interest in the Oakland real estate, the value of which for the purposes of the will, he fixed at $3,000, he deducted that sum from the share of the estate given to them by the residuary clause of the will. The judgment appealed from should be affirmed, with costs to the appellants, and to the respondents Fred Dickson and others, and also costs to the respondents Arthur Dickson and others, to be paid by the executors out of the estate.

All concur.

Cases cited

In re the Final Judicial Settlement of the Accounts of Reynolds 124 N. Y. 388 N.Y. 1891-03-08 p. 852