Ireland v. . Corse

67 N.Y. 343, 1876 N.Y. LEXIS 397

• Court: New York Court of Appeals
• Decided: November 21, 1876
• Status: Published

Opinion

Per Guriam.

The language employed in the fourteenth clause of the testator’s will is not sufficiently comprehensive to entitle the appellant to a commission of six per cent upon the amount of the entire proceeds of the estate. Had the testator intended to make any such provision it must' be assumed that he would have employed plain and intelligible terms which would clearly express such an intention. As he failed to do this, the construction of the clause in question must necessarily be restricted to the ordinary definition of the word which the testator has selected to convey his meaning. Having this in view, in no sense can the word “ collected,” which is . incorporated in the clause referred to be interpreted as including all moneys received by the appellant as executor, or the entire avails of the estate which were realized. Even if the word thus employed could be regarded as applying to any portion of the testator’s property, which came into the hands of the appellant, it cannot be held to comprehend more than it plainly imports. So far as the entire estate is concerned, it can have no effect, and .as it is not made to appear distinctly that there was any portion of the estate received by the appellants, to which the word used was applicable, he was not entitled to the allowance of six per cent.

The decree was right, and must be affirmed, with costs.

All concur.

Judgment affirmed.