In re the Judicial Settlement of the Accounts of Lowe

Spring, J.: Mrs. Sarah J. Clement, a resident of Buffalo, died October 23, 1908, leaving a last will and testament, which was soon thereafter admitted to probate and letters testamentary issued to the executors named therein. She left one daughter, her only child or descendant, the appellant, and nephews and nieces. By the second provision of her will she provided: “ I give, devise and bequeath to my daughter, Helen Springer, my printing office and bindery, together with all the presses, bindery machinery, type, paper on hand, office furniture and equipment of every nature connected with said business.” She also bequeathed to the daughter her household furniture, jewelry, horses, carriages and stable equipment, the use during her natural life of a dwelling house occupied by the testatrix and the sum of $5,000 absolutely. She disposed of considerable of the residue of her property by general and specific legacies, some to relatives and some to friends, who [349] were not related to her, and made the five nephews and nieces, who are the respondents, the residuary legatees and devisees. The printing office and bindery had been organized and developed into a successful business by Mr. Clement, the hus band of testatrix and the father of the daughter Helen, and who died in February, 1901, leaving the business to his widow, who conducted it along the same lines adopted by her husband until her death, twenty months later. She had considerable other income-producing property, but the printing business, which had become profitable and extensive, she always kept separate and distinct. It was carried on in the name of her deceased husband as before his death, and the bank account connected with it was kept in the same name, so that at the time of her decease everything pertaining to it was readily ascertainable. Her will was executed in April preceding her death. When she died there was a large contract for printing almanacs which was practically completed, and a small quantity of the almanacs had been delivered, but no part of the purchase price had been paid. Within three months this contract was fully consummated and over $11,000 paid to the executors. There were also due to the testatrix at the time of her death nearly $15,000 in open accounts and from which has been gathered in by the executors nearly $12,000, and there were liabilities of about $1,000 growing out of the printing business and about $500 in a bank to the credit of this account. The executors paid the debts from the accounts; and collected and tentatively transferred to the appellant all printed merchandise, accounts and sums collected; and by the terms of the agreement of transfer the ownership of said property was to be determined by the Surrogate’s Court of Erie county. The executors filed their account. Objections were interposed on behalf of the residuary legatees, who claimed they were entitled by the provisions of the will to all the accounts accruing from the bindery business and to the cash in banks, and that the debts arising from it should be paid out of the general fund in the custody of the executors, and the Surrogate’s Court has held with them. In endeavoring to reach the intent of the testatrix in the dis [350] position of the bindery business, it is important to keep in mind her comprehension of that industry as a going concern. She received with the plant the accounts and money on hand comprising its equipment and readily to be identified. and distinguished from the other property of her husband. She sedulously maintained this division and transmitted the estate upon her decease so that the component parts of the business were easily to he ascertained. This successful business, it is fair to assume, she intended to transmit as a family heritage to her only child, to be carried on in her behalf without impairment of its efficiency or volume. To strip it of its bills receivable and the small amount of cash to its credit would destroy its working capital and leave nothing connected with the business from which money could be derived to meet the weekly payroll of $1,200 or over. It is unreasonable to believe that this mother designed to deprive her daughter of the fruits of this family patrimony so essential for its management and operation. We should not interpret the will in such a way as to make this serious invasion upon the live assets of the business, . unless the language of the bequest clearly calls for that construction. The only available assets were grouped in these due and accruing accounts and the small sum in cash. If the daughter was" to carry on the business without these assets, she must add a considerable sum in cash to it and practically commence anew without any working capital. But it is urged that the bequest of $5,000 was intended to compensate for this deprivation of the working capital from the business. In its place in the will this. general bequest is not connected with the disposition of the bindery business. It is the last gift to the daughter, following the devise of the use of the family residence. The testatrix had an income independent of that accruing from the bindery plant. She did not permit her daughter to share in this investment property aside from the legacy mentioned. She probably realized the importance of a separate income to provide against failure in earning capacity of the business at any time, and possibly that reason may have induced this bequest of $5,000, if any explanation be required of a legacy by a mother to her only daughter and next of kin. [351] Let us consider the provision itself. She first bequeaths the bindery business and plant in a broad bequest. She then adds, “ together with all the presses,” etc. —not words of restriction, but specifying some of the chief tangible property in the plant. She did not intend to cut down or limit the large bequest, but to make clear that in addition to the plant and business in its entirety, these principal items physically in the plant should unmistakably pass with the business. She then added the clause, going again from the definite to the general, “office furniture and equipment of every nature connected with said business.” It seems to me she had in mind disposing of the entire business and plant as she had regarded and treated it. She did this by the sweeping transfer, and then in order to identify a few of the big features of the movable property actually in the plant she hitched them onto the general bequest. The learned surrogate in his opinion (73 Misc. Rep. 178) relied, to some extent, upon Matter of Long Island L. & T. Co. (92 App. Div. 5). In that case the testator, a lawyer and who drew the will himself, by its 3d clause gave to his son, Dwight, “all my law business, law books, papers, safe, bookcases and office furniture, and all property pertaining to my business.” At the time of his death the testator had claims due him for legal services, and the son asserted that the bequest included these items, and the court held otherwise. The son was not admitted to the bar at the time of the testator’s death and considerable importance in the opinion is attached to that fact, and also to the fact that the will was prepared by the testator, “a lawyer of large experience.” The claims "due a lawyer as compensation for services are not property pertaining to his business in the sense that bills receivable are to an industry requiring a large amount of money in its ordinary operation. In Matter of Reynolds (124 N. Y. 388), also cited by the court below, the testator devised and bequeathed to his son real property upon which were buildings, “including all the furniture and personal property in and upon the same, or in any manner connected therewith.” The office of the testator upon this devised property contained a vault in which were stored money and securities, and the court held they did not pass to the son by the will. The provision is not similar to the one in [352] controversy. The facts disclosed connected with the operation of the bindery business are illuminating in enabling us to arrive at the intention of the testatrix is disposing of that business to her daughter. It is not very satisfactory to cite authorities in construing uncertain clauses in a will. In one case the will may receive a restricted interpretation and in another a more liberal construction may he necessary to carry out the apparent purpose, which is the aim the courts seek to make effective. I think the decree of the Surrogate’s Court should he reversed, and the matter remitted to it for further proceedings in accordance with this opinion, with costs of this appeal to the appellant to be paid from the general fund. All concurred, except McLennan, P. J., and Foote, J., who dissented in an opinion by McLennan, P. J.