Delehanty v. St. Vincent'S Orphan Asylum

Landón, J. The question is not free from doubt, but we have reached the conclusion that the remainder in the sum of $6,000, forming the principal of which the testator’s widow was given the income during her widowhood, is embraced in the surplus to be distributed by the executor. It appears quite satisfactorily that the testator intended to make a disposition of his entire estate; that he intended that the persons and institutions to which he gave particular sums and benefits should have his entire' estate; and that no others should have any part of it. He specified with exactness—no doubt as fully as he could foresee the result, and had confidence that his estate could fully respond—the sums which should be the source or measure of his-bequests. He thus bequeathed $4,500 absolutely, and $6,000 during the life of his widow, provided she did not remarry. He thought it possible that she might remarry, and also that his estate would exceed the sums thus disposed of. The provision for his wife was conditional upon her acceptance of it in lieu of and discharge of her dower, and he did not know how she would elect. He realized that some further .provision should be made in order to make a complete disposition of his estate. He had no near kindred. He had fixed upon the persons and institutions named in his will as the sole objects of his bounty. He could not foresee the action or faithfulness of his widow to his memory, or her ultimate needs, or how much his real estate, which by his will he equitably converted into money, and disposed of as such, would realize. He had confidence in his executor, and he therefore declared: “The surplus, if any, to be distributed by my executor to the above-named persons and institutions in such proportion as in his judgment he may see fit to do.” He thus designated the persons and institutions who should receive this surplus, and left it to his executor to fix the proportion which each one should take. The will directs the executor “to convert my real estate into money, and convey the same to purchasers, and dispose of the avails thereof in the manner aforesaid. ” The testator’s intention to avoid partial intestacy is thus strongly implied. The courts will presume such an intention, unless the contrary intention actually appears in the will itself. Vernon v. Vernon, 53 N. Y. 351; Floyd v. Carow, 88 N. Y. 560; Riker v. Cornwell, 113 N. Y. 115, 20 N. E. Rep. 602; Kerr v. Dougherty, 79 N. Y. 360; Thomas v. Snyder, 43 Hun, 14; Lyman v. Lyman, 22 Hun, 261. FTo particular form of words is required to pass a residuum. Thus, the words “balance of estate,” (Roman Catholic Church v. Wachter, 42 Barb. 43,) " “balance of my capital,” (Vernon v. Vernon, supra,) “what is left of my books and furniture, and all other things,” (Goods of Cadge, L. R. 1 Prob. & 799 Div. 543,) “the balance of my estate,” (Grimes v. Smith, 70 Tex. 217, 8 S. W. Rep. 33,) are apt words for the purpose. Suppose the widow had elected to take her dower, and not the semi-annual provision. The surplus, then, would have been different, but the testator, in such case, intended it should go to his legatees, including his widow, and he left it to his executor to fix the proportions among them as in his judgment he should see fit; andin either case, in the light of the event, the residuum may go, within the provisions of the will, and this affords a strong argument that it does go. But the respondent’s contention is that the word “surplus” is so used in this will as not to include, but to exclude, the remainder in the $6,000. The argument is that the testator first gives the $6,000 as the principal for the annuity to his widow, then $4,500 in the aggregate to the other legatees, and then disposes of the surplus, “if any,” these words meaning if any over and above the sums already mentioned, and not including any of them. This construction is supposed to be strengthened by the fact that the will directs the sums composing the $4,500 to be paid within 18 months after the decease of the testator, thus implying, in connection with the direction respecting the surplus, that if there be any surplus it will then be ascertained and distributable; that if the testator had intended to include the $6,000 in the surplus, he could not expect that it would be distributable at the end of 18 months, and he would not have suggested the doubt respecting a surplus which the words “if any” imply; that the doubt in his mind was whether there would be any surplus over $10,500; that the $6,000' fund was to come into the testator’s hands for investment, and not for distribution. Admitting that this reasoning is entitled to respectful consideration, we still think it must yield to the considerations first adduced. The testator’s intention, which must control, we think was to designate unmistakably the beneficiaries of all his estate; to apportion among them, within safe limits, the larger part of it; and to confide to his executor the apportionment among them of the surplus or residuum. It follows that the judgment of the special term must be reversed. As the widow does not appear to have been served with the summons, nor to have appeared in the action, we do not think any part of the investment or estate by which her annuity is to be produced should be disturbed by this judgment. The costs of the parties to be paid out of the surplus, if any, over and above the amount by which her annuity is secured. All concur.