In re Squires

127 Misc. 361, 216 N.Y.S. 750, 1926 N.Y. Misc. LEXIS 1048

• Court: New York Surrogate's Court
• Decided: June 5, 1926
• Status: Published

Opinion

Pelletreau, S.

Allen P. Squires died in 1914, leaving a will dated February 9, 1911. At the time of his death and of the making of his will he was of advanced years, and had conducted a general country store at Hampton Bays for many years. At the time of his death he owned approximately thirty separate pieces of real property, and the account filed shows him to have then possessed in personal property $4,576.24, and Schedule D of the account shows him to have owed $5,551.52. He, therefore, did not have personal property sufficient to meet his obligations. This fact must be taken into consideration in attempting to construe his will.

He provided a trust fund of $lt)0 for the care of his cemetery plot; $500 to his son, Seymour L. Squires, who qualified as an executor, but died October 15, 1917; $2,000 each to his daughters, Mrs. Thurston and Mrs. Overton; $100 to a niece, Annie Cartwright; and devised to his son Alvin his homestead and three other plots of land, together with all outdoor movables, stock and household furniture. I note that, in the 6th paragraph of his will, the legacies of $2,000 each to his daughters, Mrs. Thurston and Mrs. Overton, were to be paid in part from proceeds from $3,000 life insurance, and the balance of $1,000 from his residuary estate.

The 8th and 9th clauses of the will read as follows:

“Eighth. I give to my sons Charles A. Squires, Seymour L. Squires and Riley P. Squires all the rest, residue and remainder of my property of every kind except the store fixtures, which may be sold at public or private sale to my sons or to any member of the family or they may divide them or hold them in common.

“Ninth. If in the final distribution of my estate the residue given to my three sons above named shall exceed three thousand dollars to each of them then my son Alvin F. Squires shall share equally with my other sons in the surplus over and above the three thousand to each of my said three sons.”

When Allen P. Squires made his will he was advanced in years, and must have gone to a lawyer or someone to prepare his will, as it is not in the handwriting of the testator. An examination of the original will shows the scrivener, whoever he was, to have prepared it in a careless and clumsy manner.

To attempt to construe the will by recourse to correct rules of English or grammatical construction and punctuation would be futile where an examination of the original will itself clearly shows the scrivener who prepared the will to have had no knowledge of either.

The store fixtures, so called, consisting of shelving and counters in the place of business of the deceased, were built in, fitted and nailed. For practical purposes, they were as much a part of the building as the piazza in front of it. The building was built as a store building and always used as such. I mention this in view of the peculiar wording “ except the store fixtures ” which appears in the 8th paragraph of the will. The testator had already given the homestead property upon which the store stood to his son Alvin. I rather think those words are expressive of intention that the testator had before disposed of the fixtures in giving the store building itself to the son Alvin. It may be a clumsy conclusion, but the will is clumsily expressed.

Alvin was given all other chattels, both outdoors and indoors, and was given the store building. Why not the fixtures which were nailed to and built in it? Would the testator mean that the store fixtures should be sold at public or private sale? I think not. I think paragraph “ Eighth ” of the will should be construed to read as follows: “ I give to my sons Charles A. Squires, Seymour L. Squires and Riley P. Squires all the rest, residue and remainder of my property of every kind, which may be sold at public or private sale to my sons, or to any member of the family, or they may divide them or hold them in common.”

If the testator, under that clause, intended to give power of sale, and I think he did, that power went to the executors, and they still possess it.

When such sales are made, then the 9th paragraph of the will becomes of interest, to wit: “ If, in the final distribution of my estate, the residue given to my three sons above named shall exceed three thousand dollars to each of them then my son Alvin F. Squires shall share equally with my said other sons in the surplus over and above the three thousand to each of my said three sons.”

That means, in my opinion, that, if the residue be $9,000 or less, it all belongs to Charles A. Squires, the heirs of Seymour L. Squires, and Riley P. Squires, aforesaid. If the total residue exceed $9,000, then the surplus or excess is to be divided into four parts, one part to Charles A-. Squires, one part to the heirs of Seymour L. Squires, one part to Riley P. Squires, and one part to Alvin F. Squires.

In short, the real estate is converted into personal property, the executors have full '.power and authority to sell it, and should sell it, and distribute the proceeds in the manner that I have construed the will to mean and as thereby directed.

The executors have rendered an account herein filed May 1, 1926, and a supplemental statement to such account verified May 20, 1926. Joseph G. F. Squires, a son of Samuel L. Squires, deceased, and a person in interest, has filed objections to such account and the said supplemental or amended account. The said objections are sustained, but only in so far as the account rendered may be inconsistent with the above construction of the will of Allen P. Squires, deceased.

The executors, therefore, are directed to amend their account accordingly; the amended account, however, should clearly show and enumerate each of the parcels of the real property still unsold and in the estate; and it is the desire of the court that the real property in the estate be sold speedily, as, in its opinion, such action is in the interest of all concerned, will obviate and remove questions affecting title thereto, and, when so sold, final account be rendered and the estate settled and closed.