Philson v. Moore , 30 N.Y. Sup. Ct. 152 ( 1880 )

Barnard, P. J.:

By tho terms of the will it is plain that only the land was devised in trust, which testatrix then owned. The words are exclusive in their nature. The devise is of “ all those certain three lots, pieces or parcels of land, situate and described as follows, to wit.”

The accurate description is given by metes and bounds in the will,- of the subject of-the devise. The provision for the sale of the lands by tho executors during the life of testatrix’s husband, James Moore, who had the life estate in the trust fund, and the investment of the proceeds, explains the uso of language as to the estate after the husband’s death. -The “any and all other property or securities which • they may hold ” could include no other property than the real estate unsold, and the proceeds of such real estate as had been sold by tho executors, and which they were directed to invest.

Tho codicil makes no change in the will. By it tho testatrix revoked certain legacies given by the will, and inserted others. After making all the changes the codicil proceeds to bequeath: .“ The rest, residue and remainder of any and all property which may remain in the hands of my said executor.” . .

■ These words do not import that any other property shall be the 'subject of the bequest than the land devised by the will, and the proceeds of the land sold as therein provided. By the.. word “thereof” is meant the land or such part as is unsold, and the following words refer to the'proceeds of the lands so •sold.

The design of the testatrix is clear under the proven facts.

At the time the will was made the testatrix only owned the lands devised in the will. She, before her death, sold a large portion of the lands, and the proceeds became personal estate.

The law is well settled th^t if a testatrix devise real estate, and sell the same before the will takes effect, the proceeds of the will become personal estate, and no court can substitute the money received by testatrix for the land devised. (Beck v. McGillis, 9 Barb., 35 ; Vandemark v. Vandemark, 26 Id., 416; McNaughton v. McNaughton, 34 N. Y., 201.) If this be the correct view of the meaning of the will and codicil, none of .the legacies are payable until after James Moore’s death.

I think the bequest to the Board of Foreign Missions, in trust for the Home and Foreign Mission’ Society of Brooklyn, good. The life estate was good in all the lands in the testatrix’s, husband for his life. When the remainder became payable there was a good and valid corporation to take the-bequest of the remainder. It is like a bequest to an unborn child. Such child will take, if in being at the time for the distribution.

Judgment affirmed, with costs to respondent out of trust estate,

Dykman, J., concurred; Gilbert, J., not sitting,

Judgment affirmed, with costs to the respondent, the executor, out of the estate.