McCoy v. Vulte

30 How. Pr. 265, 3 Rob. 490

• Court: The Superior Court of New York City
• Decided: December 15, 1865
• Status: Published

Opinion

Robertson, C. J.

This is an action for a specific legacy against an executor. The testatrix who was a widow, in • the year 1864, had in her possession and belonging to her, four trunks filled with wearing apparel, household linen, blankets and bedding, containing also a piece of plate, some plated ware, gold-headed canes, opera glasses, chessmen, and some ornaments of trifling value. She had also in her possession and belonging to her, a tin box containing some articles belonging to a deceased parent, a watch and eyeglass. At the same time she owned a leather traveling valise and its contents, then deposited with a friend. It contained jewelry belonging to herself, as well as personal ornaments belonging to her deceased husband in his life time. She then owned no other trunks containing wearing apparel, household linen or stuffs, silver or jewelry.

In the same year she executed an instrument subsequently admitted to probate by the proper officer, as her last will and testament. In it, among other things, she bequeathed to the plaintiff, her sister, “ all her wearing apparel, household linen or stuffs, and jewelry, not ” thereinafter “ specifically bequeathed, which ” was then “ contained in eight trunks, together with the said trunks,” as her separate estate; and in case of her death before the testatrix, she gives the same to two children of her sister’s husband. She next bequeaths therein a silver tea set to one of such children. After several general devises and legacies, she bequeaths thereby one-half part of all her residuary estate to a friend, and the other half to the same two children of her sister’s husband, with a bequest over in case of their disease or incompetency, to the same friend. The testatrix until the time of her death, remained in possession of the four trunks, with the tin box before mentioned, and their contents, and continued to own the valise so deposited for safe keeping, with its contents, and did not own any other trunks containing any wearing apparel, household linen and stuffs, silver or jewelry.

The contest in this case is respecting the contents of the valise in the hands of a third party at the time of the death .of the testatrix, which the residuary legatees claim under th.e general residuary bequest. I do not perceive any great difficulty in the construction of the specific bequest. It is contended that the words “ which are now contained in eight trunks, together with said trunks,” are not mere words of description, but limit the general term “ all.” There can be no doubt that if the testatrix had had articles of the kind described in eight trunks, besides others of the same kind, the specific legatee could only have taken those in such trunks ; but in this case she did not have any “ jewelry ” in a trunk unless the valise be one, and she had some in that. The bequest as to “jewelry,” must therefore fail, unless the contents of such valise passes thereby. The bequest must be construed so as to take effect upon something, if possible consistently with legal rules of construction. When the whole of a description' does not correspond with any’' existing subject, but a part does, the residue of it beyond such part may be disregarded as erroneous and surplusage. In the present case the words are “ all my wearing apparel, &c.,” and not all of my wearing apparel, &c., which would admit of some further description, with a relative pronoun referring to and limiting it. As it stands, the first part of the sentence is capable of being construed by itself, and is applicable to an existing subject, while the subsequent words which defeat the whole bequest as to “ jewelry,” being inapplicable to any existing subject, may be disregarded, without altering the sense, and should be so to prevent such a result. Evidence was given on the trial to show that some of the articles of jewelry contained in the valise did not beloqg to the testatrix, but to her husband or his executor. If so, she could not bequeath them, but that would not prevent the bequest from taking effect upon what was hers.

The plaintiff is entitled to judgment for the articles of jewelry belonging to the testatrix, contained in the valise deposited with Mr. Martin, with costs to be paid out of the estate.