Frost v. Blackwell

The opinion of the court was delivered by Parker, J. We are unable to concur in the construction of this will and codicil that was adopted by the learned vice-chancellor. In the sixth paragraph of the will testatrix says plainly that she owes her husband a debt, and that to secure its payment she has conveyed the Bay City property to Miss Howard. She expects it to be sold in whole or part to pay that debt, and any part unsold, or if all be sold, any surplus of the proceeds after paying the debt is to go to the two nephews Birney and Prank Blackwell. In the first codicil she says that the amount of the debt for' which she transferred the property as security was $10,000. She has concluded that the nephews ought to have the Bay City property without impairment by reason of this debt, so she charges it on her estate at large by directing the executors to pay it, and on such pa)'ment> the pledge, being redeemed, is to go to the nephews intact. The second codicil makes no change in this situation except to indicate that the “debt” to the husband is somewhat elastic in character, and to express the will of testatrix that (not to exceed $10,000) it shall be the amount available in the estate over a minin-mm of $13,000 intended for the nieces and given by way of remainder. We think the theory that the $10,000 was a legacy to Miss Howard is untenable. If testatrix intended to give her a legacy [628] of that or any other amount, the appropriate language to effect this purpose would be the very simplest that it is possible to use in a will. The word “given,” in the second codicil, is merely a loose use of language and must be read in connection until the preceding provisions. The testamentary scheme is perfectly plain. The debt to the husband is to be first paid to his trustee; in full if the estate be $23,000 or over; if it be less than $23,000, the debt is scaled to the excess over $13,000. The nephews on payment of this get the Bay City property; and the residue of the estate is held to pay the husband an income for life with remainder over to the nieces. The fact that the Bay City property was sold in the lifetime of testatrix does not alter the rest of the scheme. The nephews are simply cut off. Helen B. Howard figures solely as a trustee for William T. Blackwell and has no beneficial interest as legatee or otherwise. The decree of the court of chancery will be reversed and the record remitted to the end that a new decree be made in conformity with this opinion. The result makes it unnecessary to discuss the alleged failure of the “legacy” by sale of the property in testatrix’s lifetime. For affirmance—None. For reversal—The Chiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch^ Bogert, Vredenburgfi, Congdon, White, Heppeniieimer—12.