Thayer v. Burr , 119 N.Y.S. 755 ( 1909 )

Ingraham, J. :

I concur in the opinion of Mr. Justice McLaughlin.

The testatrix plainly intended that her sister should receive the dividends declared on this stock during her life, and she as plainly intended that what was to go to Irene Burr was the stock as it existed at the time of her sister’s death, without any of the dividends that had been declared during her sister’s life. There was nothing to justify an inference that the testatrix intended to limit the dividend to be received by her sister to the amount that had theretofore been declared upon the stock. She must be presumed to have understood the nature of the joint stock association that issued this stock, that it had the right to distribute its surplus earnings among its stockholders at any time, and it was said distribution that she clearly intended when she spoke of the dividend that the trustees were to receive and to apply to the use of her sister from year to year so long as she should live. The language used by the testatrix, that “ at her decease the said stock is to go to Irene Burr, the daughter of my deceased husband’s sister Irene, and to her heirs and assigns ' forever,” would limit the bequest to Irene Burr to the stock as it existed at the time of her sister’s death; and upon no possible construction of this language could it be held that the dividend that had been declared during her sister’s life was to go to Irene Burr.

I think the construction given by the referee to this clause contradicts the express intention of the testatrix and that the testatrix’s sister was entitled to all dividends or distribution profits made by •the association during her life.

Laughlin, J., concurred.

Judgment reversed and judgment ordered as directed in opinion, with costs to appellant and plaintiff, payable out of the estate. •

■ Settle order on notice.