Brundage v. Brundage

By the Court, Mullí», P. J. The Special Term was right in holding that the executors were not entitled to call for a construction of the will as to the validity of [407] the devise of the farm to Collar. They have nothing to do with the land. They have no estate in nor control over it. Bor could the court give a construction to that clause on the application of Charles C. Brundage. It is charged in the complaint that Collar did not support the testator, but the allegation is denied in the answer, and there is no proof on the subject. If Brundage desired to have the court pass upon that clause it was his duty to make proof of the facts alleged in the complaint; failing to do that, the court could not make any other disposition of the question than it has done. The case states that the plaintiff offered to prove that Collar abandoned the premises and failed to provide for the testator &c., and that the defendants objected to this evidence, and it was rejected. If by the plaintiff was meant Charles 0., I am not satisfied the learned judge was right in rejecting it. He obviously understood the offer to be made by the executors, and the mistake was not corrected, and it is too late to correct it now. It was correctly held that the widow was not entitled to any share of, or interest in, the eighty per cent scrip issued by the Hew York Central Railroad Company to the testator. The certificate for the eighty per cent is dated the 24th March, 1869, and was issued in pursuance of a resolution of the directors of said company, passed 18th December, 1868. The testator died 22d June, 1869. At the time of his death, therefore, the scrip was a part of Ms personal estate, and no connection between the original stock and the scrip is shown to exist thereafter, or that any connection between them was intended by the testator. They were separate and distinct obligations against the company, assuming ttiat the scrip was valid; and [408] its validity is not called in question in this action. (Currie v. White, 37 How. 339.) Whatever dividends were made to the stockholders after the death of the testator, the widow was entitled to, to the extent of the shares of stock held by her, but not to any earned before, although not paid until after his death. (Redf. on Wills, part. 2, pp. 469, 470, and notes. Spear v. Hart, 3 Rob. 420.) This scrip passed to the son Charles, as part of the surplus referred to in the-last clause of the will. Although not entitled to share in the eighty per cent scrip, she was entitled to the dividends or income derived from the twenty-seven per cent scrip, which was issued after the testator’s death, and also to the income from the consolidation scrip issued by the consolidated company. A dividend earned but not declared belongs to the person owning the stock when the dividend is actually declared, and not to the owner of the stock before such declaration. On the death of the widow $1,000 of the railroad stock bequeathed to her passed to Charles C. Brundage, together with $1,000 of the cash, given her by the will, and the residue of the property given to the widow was to descend to his heirs.. Ten shares of the same stock is given by the third clause of the will to Mrs. Collar after the death of the widow. $1,000 of the cash given to the widow is by the fourth clause of the will given to Sarah S. Brundage. By the fifth clause of the will, the residue of the property, the use of which was given to the widow for life, after paying the foregoing legacies, is given to Charles and his daughters Maria and Sophia, to be equally divided between them. By the fourth clause, as modified by the first codicil, ten shares of New York Central stock, and $1,000 in bonds of the same company are given at the decease of the testator to his daughter Sarah S. If the testator [409] was the owner of ten shares of this stock not bequeathed to some other of the objects of the testator’s bounty, then ten shares are payable from such stock, but if not, it is the duty of the executors to purchase ten shares of $100 each, and transfer them to her. If such stock cannot be purchased, then Sarah is entitled to the market value, in money, of said stock, thirty days after the testator’s death. As the testator owned no bonds of the Hew York Central Railroad, the executors must either procure such bonds and deliver the same to Sarah, or pay her the market value thereof in money, thirty days after the death of the testator. By the fifth clause Charles C. is entitled, at the death of the testator, to $1,000 in cash. Charles is entitled, under the will, to but one sum of $1,000 in cash, and $1,000 in stock, from the cash and stock bequeathed to the widow. The whole of that fund is disposed of by the clauses of the will preceding the fifth clause, and there is nothing in the will, or in the proof, to show that the testator intended to revoke or modify such clauses. When the will was made, the testator had not purchased the house and lot, and he could not then have intended it should pass to Charles as part of the surplus referred to in the will. There is nothing in either of the codicils, if they were made after the purchase of the house and lot, indicating any change of purpose as to what was intended to pass as surplus. The surplus contemplated was, it seems, that which should remain of the personal, after paying the debts and the legacies specified in the will. As the judgment in this case will not interfere with the right of Charles to insist, hereafter, that he is entitled to the house and lot, by the will, it is better for all [410] concerned that the- question should be reserved for decision, to another litigation. [Fourth Department, General Teem,-at Buffalo, June 3, 1873. Mullin, Talcott and B. D. 'Smith, Justices.] Judgment affirmed. The costs of the executor to be paid out of the estate.