Pritchard v. Hicks , 1828 N.Y. LEXIS 357 ( 1828 )

The Chancellor :—There is no validity in the objection made by the counsel of Hicks, that the residuary legatees are not parties to this suit. This is not the proper place *to contest the question as to the due execution of the codicil. As it relates to personal property only, if it was not duly executed, the executors should have proved the will without the codicil, and then all persons interested might have been cited before the surrogate to litigate that question, and have their rights settled by the proper tribunal. The defendants having undertaken the execution of the whole will, they cannot now object to the due execution of any part thereof; (Hume v. Burton, 1 Ridgw. P. C. 277; Monell v. Dicky, 1 John. Ch. R. 153.) It is a general rule, that a residuary legatee, or other person suing for a distributive share of the estate, should make all the other parties interested in the distribution, parties to the suit, so that one account only may be taken. But in this case, no account of the estate is to be taken against the executors, as the fund is admitted to be amply sufficient. A creditor or legatee who is entitled to priority of payment, need not make the parties interested in the residuum of personal estate, parties to the suit; (Brown v. Ricketts, 3 John. Ch. Rep. 556; West v. Randall, 2 Mason’s Rep. 181.) The executor or administrator is, in such cases, the legal representative of the rights of the residuary legatees, and it is his duty to see them properly defended; and if there is a fair question for litigation, and he does nothing more than his duty in attending to their interests, he is always allowed his costs out of the fund belonging to them.

The only question, then, is as to the construction and meaning of the last codicil. And here it is insisted by the counsel for Hicks, that no parol evidence can be received, to explain the intent and meaning of the testatrix.

Where the subject of the devise or legacy is described by reference to some extrinsic fact, extrinsic evidence must be resorted to for the purpose of ascertaining that fact, and thus to ascertain the subject of a testator’s bounty.^[1] Sanford v. Raikes, 1 Meriv. 646.

I do not conceive it necessary to go farther in this case. The testatrix directs the mortgage on her house, and the debts due to Shevill and the heirs of Colonel Jones, to be paid by her executors. The parol proof established the fact, that the mortgage and two notes in question were the only debts *and mortgage existing at the time, which could by any possibility answer the description in the codicil. But the rule as to the admission of parol evidence goes farther. For where the words of a will are equally applicable to two persons or two things, the intention of the donor shall not, for that cause, be defeated; but parol evidence may be received to show which person was the object of his bounty, or which article he intended for the donee.^[2]

The amount due on the mortgage and two notes, together with the costs of this suit, must be paid by the executors out of the assets of the testatrix in their hands.

[1] See 2 Phil. Ev. 297; and Cowen & Hills’ Notes, 537.

[2] See Wigram on the Admission of Extrinsic Evidence in aid of the Interpre tation of Wills, pp. 11, 14; Grey v. Shark, 1 M. & K. 602; per Lord Brougham, Ch., Miller v. Traverse, 8 Bing. 244; Hodges v. Horsfall, 1 Russ. &My. 116; Coyt v. Starkweather, 8 Conn. 289; Hiscocks v. Hiscocks, 5 M. & W. 363, 367; Attorney-General v. Shore, 11 Sim. 592, 616, 627, 631, 632; French v. Carhart, 1 Comst. 96; 2 Cowen & Hill’s Notes to Phil. Ev. 537, et seq., where all the authorities in this country and in England on this subject are collected.