Hamilton v. Hamilton

75 Misc. 21, 134 N.Y.S. 645

• Court: New York Supreme Court
• Decided: December 15, 1911
• Status: Published

Opinion

Gut, J.

Action to construe a will. Alice Hamilton, the decedent, died in September, 1905. By her will, after bequeathing certain pecuniary legacies aggregating $10,000, she bequeathed “ to my sisters Charlotte A. and Adelaide Hamilton "x" * * all my wearing apparel, jewelry, furniture, books, busts, pictures, silver, and whatever belongs to me in my residence, Ho. 17 West Twentieth street, in the city of Hew York, and also any moneys and securities to me belonging at my decease, the same to be equally divided between them, saving and reserving therefrom, however, such specified articles as are designated memorial gifts in a list signed with ihy signature and hereto annexed. * * * Fifth.. All the rest, residue and remainder of my estate, real and personal', I give, devise and bequeath equally to my said sisters Charlotte A. and Adelaide Hamilton, share and share alike.” Charlotte A. Hamilton died in April, 1896, unmarried, and the bequests to her lapsed. In May, 1896, the decedent executed a fourth codicil, whereby after bequeathing $3,000 in additional legacies to legatees named in the original will, and $4,000 in additional legacies, she provided: “As to all the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath the same to my sister Adelaide during her life, with full power to sell or otherwise deal with 'the same as deemed best by my executors. After the decease of my said sister Adelaide the principal of said remainder of my estate I direct shall be divided int,o eight equal shares between my nephews and nieces,” therein named,. By a later codicil the decedent divided her residuary estate into seven shares instead of eight. This was because of 'a nephew’s death. Aside from the real estate specifically devised the executors collected $289,299.37. Out of this 'they have paid pecuniary legatees $17,194.64; Adelaide Hamilton on account of bequests, $100,000; and, after allowing for loss on sale of securities, and deducting expenses of administration, have now in hand for distribution the sum of $132,680.61. The principal question is whether Adelaide Hamilton is entitled absolutely to one-half of the decedent’s “ moneys and securities,” or whether she is only entitled to one-half of the net residue after deducting the $17,194.64 of pecuniary legacies. The pecuniary legacies having all been paid in full, there is no question of any abatement or reduction of them. The bequest of one-half of the decedent’s “ moneys and securities ” to a surviving sister is a specific legacy rather than a demonstrative one. If there had been no money or securities it would have abated. But it would not be subject to abatement with the general legacies. Cranford v. McCarthy, 159 N. Y. 514, 519-520; Matter of Matthews, 122 App. Div. 605, 607. There is nothing in the residuary clause of the fourth codicil that revokes the bequest to the decedent’s surviving sister of one-half of “ any moneys and securities to me belonging at my decease.” Matter of Reynolds, 124 1ST. Y. 388, 394—399; Fenton v. Fenton, 35 Misc. Rep. 479, 484, 485. The attorney- for the defendant, the surviving sister, conceded that interest, if any, upon her one-half share of decedent’s money and securities did not begin to run in her favor until one year after the issue of letters. The income of the part of the residue in which the surviving sister takes a life estate accrued from the date of the decedent’s death. The account of the executors is admitted to be in -all respects correct, and will be judicially settled as filed. The plaintiff is entitled to judgment, construing the will in harmony with this opinion, with costs to the plaintiff, and all answering defendants to be paid out of the estate.

Judgment for plaintiff.