Majority
p. 490Elizabeth McCoy, plaintiff vs. Frederick L. Vulte, et al. executors &c. defendants. (Before Robertson, Ch. J. at special term.) Tried November, 1865; decided December, 1865.
Headnote
1. A testatrix having in her possession, belonging to her, four trunks filled with wearing apparel, &c.; a tin box containing some articles of'jewelry, &c.; a leather traveling valise containing jewelry belonging to herself, as well as per- • sonal ornaments belonging to her deceased husband iu his life time, and owning no other trunks, containing wearing apparel, silver or jewelry, executed a will. By that will she bequeathed to the plaintiff “ all her wearing apparel, household linen or stuff and jewelry not ” thereinafter specifically bequeathed, which “ was then contained in eight trunks, together with the said trunks,” &c. She bequeathed one half part of all her residuary-estate to a friend, and the other half to the two children of her sister’s husbandi The testatrix, until the time of her death, remained in possession of the four trunks, with the tin box, and their contents, and continued to own the valise with its contents; and did not then own any other trunk containing wearing apparel, household linen, stuffs, or silver or jewelry. The residuary legatees claimed the contents of the valise, under the general residuary bequest. Held that the plaintiff was entitled to the articles of jewelry belonging to the testatrix contained in the valise, under the bequest to her, in the will; because she would have had no jewelry in a trunk, unless the valise were one.2. When the whole of a description does not correspond with any existing subject, but a part does, the residue "of it beyond such part may be disregarded as erroneous and surplusage.
This was an action against an executor for a specific legacy. The testatrix, who was a widow, in the year 1864, had in her possession, and belonging to her, four trunks filled with wearing, apparel, household linen, blankets and bedding, containing also -a piece of plate, some plated ware, gold headed canes, opera glasses, chessmen and some ornaments of trilling value. She also had in her possession, and belonging to her, a tin box containing some articles of jewelry, including some articles belonging to a deceased parent, a watch and eyeglass. At the same time she owned a leather traveling valise and its contents, then deposited with a friend. It contained jewelry belonging to herself, as well as personal ornaments belonging to her deceased husband in his life time. She
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then, owned no other trunks containing wearing apparel, household linen or stuffs, silver or jewelry.
In the same year she executed an instrument admitted to probate by the proper officer, as her last will and téstament. In it, among other things, she bequeaths to the plaintiff, her sister, “all her wearing apparel, household linen or stuff, and jewelry not” thereinafter specifically bequeathed, which “ was then contained in eight trunks, together with the said trunks,” as her separate estate, and in case of her death before the testatrix, she gives the same to two children of her sister’s husband. She next bequeaths therein a silver tea set to. one of such children. After several general devises and legacies, she bequeaths thereby one half part of all her residuary estate to a friend, and the other half to the same two children of her sister’s husband, with a bequest over in case of their decease or incompetency, to the same friend.
The testatrix, until the time of her death, remained in possession of the four trunks, with the tin box before mentioned, and their contents, and continued to own the valise, so deposited for safekeeping, with its contents, and did' not own any other trunk, containing any wearing apparel, household linen and stuffs, silver or jewelry.
B. D. Silliman, for the plaintiff.
Albert Matthews, for. the defendants.
The contest in this case is respecting the contents of the valise in the hands of a third party at the time of the death of the testatrix, which the residuary legatees claim under the general residuary bequest. I do not perceive any-great difficulty in the construction of the specific bequest. It is contended that the words “ which is now contained in eight trunks, together with said trunks," are not mere words of description, but limit the general term “all.” There can be no doubt that if the testatrix had had articles of the kind described, in eight trunks, besides others of the same kind, the
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specific legatee could only have taken those in 'such trunks ; but in this case she did not have any jewelry in a trunk, unless the valise be one ; and she had some in that. The bequest as to jewelry, must therefore fail, unless the contents of such valise pass thereby. The bequest must be construed so as to take effect upon something, if possible, consistently with.legal rules of construction. When the whole of a description does not correspond with any existing subject, but a part does, the residue of it beyond such part may be disregarded as erroneous and surplusage. In the present case the words are “ all my wearing apparel, &c.” and not “all of my wearing apparel, &c.” which would admit of some . further description with a , relative. pronoun referring to and limiting it. As it "stands, the first part of the sentence is capable of being construed by itself, is applicable to an existing subject; while the subsequent words which defeat the whole bequest as to jewelry, being inapplicable to any existing subject, may be disregarded, without altering the sense, and should be so to prevent such a result.
Evidence was given on the trial -to show that some of the articles of jewelry contained in the valise did not belong to the testatrix, but to her husband or his executors. If so, of course she could not bequeath them, but that would not prevent the bequest from taking effect upon what was hers.
The plaintiff is entitled to judgment for the articles of jewelry belonging to the testatrix contained -in the valise deposited with Mr. Martin, with costs to be paid out of the estate. Findings of fact may be prepared by the plaintiff’s attorneys, and submitted to me according to this opinion.