Brearley v. Lalor , 15 N.J. Eq. 108 ( 1862 )

The Chancellor.

The bill is filed to settle the construction of the will of Catharine Beatty, and for directions to the executor in the settlement of the estate. The question arises upon the residuary clause or clauses of the will, which are as follows, viz. “ all the residue and remainder of my moneys not above disposed of, that is of moneys which I have at the time of my decease, I direct to be equally divided among my children and grandchildren living at the time of my decease“ whatever personal property is not herein before disposed of I direct to be sold by my executors, and the moneys thence arising to be divided equally between my son and my two daughters, and in case of the decease of either of them during my life, the share which said deceased one would have taken, if living, shall go to and among his or her children, in equal parts.”

By these two clauses, a clear distinction is drawn between her moneys and her personal properly. The residue of the one is given to all her children and grandchildren equally; what remains of the other not disposed of she directs to be divided equally between her children.

In Mann v. Executors of Mann, 1 Johns. Ch. R. 231, it was held, by Chancellor Kent, that in a bequest of “ moneys,” there being nothing in the will to show that the testator used the word “ moneys ” in a different or more extended sense, it must be understood, in its legal and popular sense, to mean gold or silver, or the lawful currency of the country, or bank notes, where they are known and used as cash, or money deposited in bank for safe keeping, and not to comprehend notes, bonds, mortgages, or other securities.

The same construction has been adopted in numerous other cases, which are collected in 2 Roper on Legacies 282, (ed. 1848); 2 Williams on Executors 1024, (ed. 1849).

It is a well settled rule of construction, that by a bequest of money, bonds, mortgages, promissory notes, or other securities for the payment of money, will not pass unless it appears by the will, or from the condition and circumstances of the testator’s estate, that it was his intention to pass them.

I have boon unable to discover anything in the will of the testatrix, or in the circumstances of her estate, which indicate a different intent from that indicated by the natural and legal import of the terms used. It is very difficult to determine what the intention of the testatrix was in the residuary clauses. It seems highly probable, either that there was a large accumulation of money in the hands of the testatrix after the date of the will, or that the provisions of the will were adopted from previously executed wills, witliout regard to the changes which had occurred in the condition of the estate.

There are considerations growing out of some of the provisions of the will which create an impression that the testatrix, in disposing of the residue of the money which she might have at her death, referred merely to the gold which was kept in a trunk at' bank, a portion of which was' given in specific legacies. But so far as any intention of the testatrix is fairly inferrible from other portions of the will, it accords with the legal import of the terms of the residuary bequests. The testatrix left $17,000 of personal estate, about one half of which is included in the residue. The estate consisted of specie and bank notes in the house, gold in a trunk at bank, money deposited in bank, money in the savings bank, bonds, mortgages, and other securities, besides household furniture and other chattels. The chattels, other than her money and securities, were specifically bequeathed.

She left three children and sixteen grandchildren, to all of whom she gave special legacies. By these special legacies, including numei-ous charitable bequests, she disposed of nearly one half of her estate, and disposed of the remainder ■ by the two residuary clauses already cited, by one of which she directs the residue of her moneys to be divided equally among her children and grandchildren living at her decease. Either of these clauses, in the absence of the other, would undoubtedly carry the entire residue of the personal estate; in the one case, to her three children equally, and in the other, to all her children and grandchildren equally. Standing together, they indicate a clear intention to give a portion of her estate in each way. If the term money is extended beyond its natural and legal import to include stocks and other securities, it will include the whole estate, for the chattels were all specifically bequeathed, and the second ' clause will be inoperative. The first clause will include the cash in the house, whether in specie or notes, the gold in the trunk at bank, and the deposit in bank. It will not include the money in the savings fund; that is in the nature of an investment drawing interest, and is not usually subject to tlie immediate order of the owner, like money deposited at bank, but can only be called in, like other investments, upon notice. Out of this part of the residuary estate must be deducted the money specifically bequeathed in the previous part of the will. By the phrase, “ residue and remainder of my moneys,” the testatrix could not have intended what should remain of her moneys after paying all the pecuniary legacies previously given; for she had given pecuniary legacies to an amount far exceeding all the moneys she had, or which there was any reasonable probability of her having at her death. To adopt this construction would necessarily defeat the legacy. Besides the natural import of the phrase is, that portion of the money which has not been previously disposed of. A bequest of the residue of the personal estate is a gift only of so much as remains after all the legacies are paid, because the entire personal estate constitutes the appropriate fund for the payment of legacies. But the money in hand does not constitute a fund for the payment of legacies, any more than the other parts of her personal estate, from which the moneys are here carefully distinguished.

The general residue of the estate will be divided, under the second clause, between the three children of the testatrix. This construction gives effect and operation to each clause and provision of the will. In no other way can that be done. The bulk of the estate is thus given equally to the three surviving children of the testatrix, who would naturally be the favorite objects of her bounty. There is a strong presumption that she did not intend to divide the bulk of her estate among her grandchildren, many of whom were minors, for no provision is made for the investment or disposition of the money until they came of age; whereas, in regard to the special bequests to her grandchildren, of much smaller amount, she has specially directed that the share of such as are minors shall be put out at interest, and paid to them as they severally come of age. if or does there seem to be any satisfactory reason why the testatrix, in addition to a specific legacy, by way of remembrance to each of her children and grandchildren, should also have given a special pecuniary legacy to each, in nearly equal amounts, if she intended eventually to divide her whole estate equally between them. But whatever weight these considerations may be entitled to in support of the construction adopted, in giving to the term money its natural and legal import, there is clearly nothing in the will which indicates a different intent in the mind of the testatrix. I entertain no doubt, therefore, as to the proper construction of the instrument.