In re the Estate of Fitzgerald

Per Curiam. Appeal is taken by Erica Brooks and by Order Minor Conventuals, two of the legatees under the will, from a decree of the Surrogate’s Court of Schenectady County, which, in a proceeding for the judicial settlement of the executors’ account, construed the will, settled the account and directed distribution. The second paragraph of the holographic will, bequeathed “amt in Banks ” to be divided between the two appellant legatees, and the issue presented to the Surrogate and now submitted to us is the construction of that paragraph. The specific question is whether the bequest is limited to the amount of two bank accounts in testatrix’ name, aggregating $902.94 at the date of the will, or whether the bequest includes the additional amount of some $62,200, the aggregate of certain savings bank accounts in which she and Joseph H. Killian, her uncle, had interests, and complete title to which vested in her on Mr. Killian’s death. These consisted of an account of approximately $12,000 in the name of “ Joseph H. Killian, as trustee for Mary E. Fitzgerald ” and four accounts aggregating $50,200, each in the names of “ Joseph H. Killian or Mary E. Fitzgerald ”. The chronology of events being important, it must be noted that the will was executed on September 17, 1963; that testatrix died just one year later, on September 17, 1964; and that Joseph H. Killian died intermediate these dates, on January 1,1964. The court found ‘ ‘ ample evidence of the intent of this testatrix in the nature and provisions of the will itself and the testimony of the subscribing witnesses ” and hence found it unnecessary to resort to the canons of construction urged by appellants’ counsel. The will was prepared by testatrix and was executed as she sat in her hospital bed, prepared for major surgery — a radical mastectomy — performed later that day. The dispositive portion of the will consists of a listing of many specific items of property, each followed by the name of a person or organization (e.g., “200 Lestoil shares Sacred Heart Program Boston N. Y. Fr. Hale & Fr. Murray ”; “ 100 Ford Stock Franciscan Missions ”; “ Rambler car — to Irene Bootier ”). The Surrogate referred to the paper as a “ rough outline” and, after remarking that decedent listed thereon “ all her possessions and named the recipients ”, said that by reason of “ the imminence of the operation she made use of the outline itself as a will ”. The paragraph here in issue provided: “ amt in Banks [327] to be divided between Mrs. Erica Brooks 180 Washington Ave Albany IT Y &. Third Order of St. Francis, Cyril & Methodius Church Congress St Schdy ”. By the decree appealed from it was adjudged, among other things, that “ the Order of Minor Conventuals [is] herein determined under the cy pres doctrine [to be] the proper repository for the legacy bequeathed to the Third Order of St. Francis ”. Mrs. Brooks was not related to the decedent, who did make substantial provision for a brother and made smaller gifts to other relatives. The record discloses nothing as to the circumstances of her relation to, or familiarity with the Third Order or as to the necessity for application of the cy pres doctrine; but her gifts to the other religious entities represented substantially greater shares in her estate as then constituted. The will contained no residuary clause. The bare, abbreviated “ amt in Banks ” phrase seems to us deficient enough, in respect of certainty and clarity, to require that it be examined in the light and context of decedent’s other testamentary provisions and of the entire will; this test, together with proof of the surrounding circumstances, being properly resorted to, of course, in aid of interpretation. The Surrogate considered, as has been noted, that the scheme and structure of the will evinced decedent’s intent to list and dispose of all her assets; and in the will decedent indicated no expectation of receiving, and no intent to dispose of any property jointly held with her uncle, Mr. Killian. These conclusions seemed to the Surrogate, and logically so, to be buttressed by decedent’s repeated references to Mr. Killian in subsequent provisions of the will, where certain dispositions of property were made in the expectation that he would, in fact, survive her. This is, of course, consistent with the testimony of the subscribing witnesses, both registered nurses, that decedent exhibited not merely normal apprehensiveness of the impending surgery but fear that she would succumb to it. The trial court’s ultimate conclusion was “ that the decedent intended the ‘ amt in banks ’ provision to be a specific bequest relating only to the bank account she owned individually upon the date of the execution of her will [the second account was discovered subsequent to the Surrogate’s decision] and not to what she might thereafter acquire upon her uncle’s death [and] that the decedent died intestate as to all her assets not specifically bequeathed in the instrument admitted as her will.” Additional support for the Surrogate’s conclusion is to be found in the circumstance that the appellants, who were the least favored of testatrix’s legatees when the will was made, together taking about $900, would, by reason of the later massive accretions to [328] her estate in the form of the joint accounts and the trust account, become her principal legatees, should their claim to the additional savings accounts of some $62,200 be sustained. There is no indication that decedent intended such a result. Indeed, the will demonstrates much greater interest, in terms of monetary provision, in the relatives that she did name and the religious entities that she designated elsewhere in the will than in these two legatees of her then modest bank accounts. The procedure followed by the Surrogate’s Court and the substantive conclusions at which it arrived are amply supported by authority. It is fundamental, of course, that the “prime consideration * * * is the intention of the testator as expressed in the will * * * gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.” (Matter of Fabbri, 2 N Y 2d 236, 239-240, mot. for rearg. den. 2 N Y 2d 979; Matter of Thompson, 217 N. Y. 111, 114, mot. for rearg. den. 217 N. Y. 665.) Thus, in this case, the single phrase “ amt in Banks ”, although superficially broad and general, was quite clearly restricted by. testatrix’ intent as disclosed when the will is read as an entirety and in the light of the facts and circumstances attending its preparation and execution. Decedent’s careful inventory of her assets and her omission of a residuary clause clearly indicate her intention to dispose of everything that she then possessed, and nothing more. She did not contemplate or intend the disposition of property that might or might not subsequently come to her from her uncle because she did not expect to survive him, as her references to, and provisions for him indicated, if, indeed, she expected even to survive the impending surgery. In such a case, it may become “ important to consider whether the instrument was executed in anticipation of immediate death, or at a time when the testator was in the enjoyment of health and engaged in business enterprises. If he was dying, it may be assumed that he did not contemplate the acquisition of property ”. (1 Davids, New York Law of Wills, § 576, p. 930, citing Heck v. Volz, 14 N. Y. St. Rep. 409, affd. 120 N. Y. 663.) There is no indication that testatrix considered or intended that what might otherwise be a gift of remembrance to a friend coupled with a modest contribution to a religious order, should attain the proportions of a small fortune, in which no other relative, friend or charity would have any share. The suggestion in the minority opinion that decedent undoubtedly knew of the existence of the Totten trust account and the [329] joint accounts when she made her will is without evidentiary support. In looking to decedent’s intent in the light of the circumstances existing at the time, the Surrogate’s conclusion is supported by ample authority. (See Matter of Brann, 219 N. Y. 263, 267; Matter of Hoffman, 201 N. Y. 247, 255; Matter of Delaney, 133 App. Div. 409, 411, affd. 196 N. Y. 530.) The dissenters seem not to recognize this rule when discussing the acts and occurrences of the ensuing year and when suggesting that when decedent transferred the accounts to her own name (as to which the record is far from clear) she was cognizant of the bequests of bank accounts made by her will. A testator’s intention “ is to be ascertained not by what occurred long after the execution of his will, but by what was, apparently, or presumably, in his contemplation, at the time he was making it.” (Matter of Hoffman, 201 N. Y. 247, 255, supra; Matter of Englis, 2 N Y 2d 395,404.) The reference in the minority opinion to the presumption against intestacy also seems inapropos. If the decedent’s intent is ascertainable from the entire will, read in the light of the attendant circumstances, as we believe it is, resort to presumptions may not be had. (Robinson v. Martin, 200 N. Y. 159, 164; Adams v. Massey, 184 N. Y. 62, 73.) Here, in any event, as in Adams, “ the presumption against intestacy is met by the presumption against disinheriting the heir and assuming them to be of equal strength they neutralize each other ” (p. 73). Our discussion has treated the disputed bequest generally and without regard to its specific nature and classification. Passing to the question of its category, we agree with the Surrogate’s holding that the bequest is specific. ‘‘ A general legacy is a gift of personal property by a last will and testament, not amounting to a bequest of a particular thing or money, or of a particular fund designated from all others of the same kind. A specific legacy is a bequest of a specified part of a testator’s personal estate distinguished from all others of the same kind.” (Crawford v. McCarthy, 159 N. Y. 514, 518-519, mot. for rearg. den. 160 N. Y. 668; Matter of Delaney, 133 App. Div. 409,412-413, affd. 196 N. Y. 530, supra-, 7 Warren’s Heaton on Surrogates’ Courts, § 61, par. 3, pp. 398-400.) The bequest under consideration is within the latter definition. This being so, it seems clear beyond dispute that the second paragraph disposes of only the two bank accounts held in decedent’s name at the date of the will, for, again to cite Delaney (supra, p. 413), “ as to specific legacies, the rule is well established that a will speaks as of the time of its execution.” (See, also, Matter of Brann, 219 N. Y. 263, supra; [330] Wetmore v. Parker, 52 N. Y. 450; Matter of Morris, 11 Misc 2d 457.) The decree should be affirmed, with costs to parties filing briefs, payable from the estate, and the matter remitted to the Surrogate’s Court for further proceedings, in connection with the completion of the judicial settlement or otherwise, not inconsistent with this opinion.