In re the Estate of Leupp , 293 N.Y.S. 295 ( 1937 )

Townley, J.

This appeal brings up for review the question whether the appellant, Hannah Sullivan, established by the weight of evidence that the transfers to her of some $44,000 worth of cash and securities by the testatrix constituted valid gifts or whether they were obtained by trick or undue influence exercised by Hannah Sullivan and others over the testatrix. No purpose would be served by a prolonged discussion of the facts set out at length in the opinion of the surrogate.

The age and circumstances of the deceased, her frailty, the fact that she herself did nothing inconsistent with a mere intent to make the securities negotiable, are all facts which made it reasonable to disbelieve the testimony of Mr. and Mrs. Grimes. Without their evidence the claimant cannot prevail. The surrogate saw and heard Grimes and his wife and was peculiarly able to determine their credibility. His decision is fully supported by the testimony.

The legatees appeal from so much of a decree of the surrogate as gives respondent Hannah Sullivan a priority over the other legatees in respect to the $5,000 codicil. By the first clause in the will, the testatrix, aside from certain articles of personal property, left $8,000 to Hannah Sullivan. The third clause of the will gave $2,500 to a Miss Bapallo. The sixth clause provides that if the estate be insufficient to pay the legacies in full, the legacies given by the first and third paragraphs shall first be paid in full and the other pecuniary legacies shall be paid pro rata. The codicil provided as follows: “ I give and bequeath to Hannah Sullivan an additional sum of five thousand dollars * * *. This is in addition to what was bequeathed to her in paragraph first of said will. Any inheritance tax on the above bequest to be paid from my estate.”

The learned surrogate has held that it was the intention of the testatrix to give to the bequest in the codicil the same preference that she had given to the bequest in the first paragraph of the will. The sixth clause of the will specifically limits the preference to the legacies mentioned in the first and third clauses. The codicil does not incorporate the $5,000 legacy into the first clause. It gives the sum of $5,000 in addition to what was bequeathed in paragraph first of the will.

We think that the language in this codicil is insufficient to warrant the inference that the codicil was to be treated as anything except a general legacy and we hold that the bequest in the codicil is not subject to any priority.

The decree hr the discovery proceeding should be affirmed, with costs. The decree construing the will and codicil should be reversed, with costs, and only the legacies contained in the first and third paragraphs of the will should be preferred.

Martin, P. J., and Cohn, J., concur; O’Malley and Dore, JJ., dissent.