De Nottbeck v. Astor , 1853 N.Y. App. Div. LEXIS 154 ( 1853 )

By the Court, Edwards, J.

The question which is presented in this action arises under the following provision contained in the will of the testator: “ Also, I give to the said six children of my daughter Dorothea, or to such of them as may survive me, $100,000, of the public debt of the city of New-York, bearing five per cent interest, usually called the water loan; to be paid to each on attaining their age of twenty-one years, and the in-, terest of the shares of those under that age, to be accumulated for their benefit until that period; and in case any of them shall. día before that age, without surviving issue, then his or her shares shall go to the survivors.”

The plaintiffs contend that this is a bequest of §100,000 in water stock, to each of the six children of the daughter of the testator separately. The defendants, on the other hand, insist that it is a bequest of §100,000 in stock to all of the children collectively. The intention of the testator is not perhaps expressed with that certainty which might be expected; yet it seems to me that it is sufficiently apparent. If the disposing part of the questionable provision is taken by itself, it will be seen that it gives to the six children of the testator’s daughter, or such of them as shall survive him, one hundred thousand dollars of the public debt, &c. He does not say that he gives that sum to each of the children; neither does he say that he gives to the six children §100,000 each. All that he gives to the "whole of them is §100,000. This is given to them in presentí, but is not to be paid to any one of the children until he or she shall attain the age of twenty-one years. Had it not been for the provision made as to the time of payment, there would not be a question as to what the testator intended to give. What was it then that he intended should “ be paid to each ?■” The answer is, that which he had given; and that is, as I understand the bequest, the share of each in the sum of §100,000, which is given to all. The error of the plaintiffs consists in construing the last clause in the bequest as defining the sum which is given, instead of merely fixing the time when the sum which is given is to be paid. The sum which is to be paid to each, is not the whole sum previously mentioned, but the share of each child in that sum. It is true that the word share is not used in speaking of the time of payment, but it seems to me to be evident that the testator referred to a share of an integral sum; for in the next clause of the same sentence he says that the interest of the shares of those under twenty-one years shall be accumulated for their benefit; and he provides that in case any of them shall die, his or her share shall go to the survivors. I do not deny that the word share might be used in such a way as to make it applicable to a separate specific bequest to each of the children; but I do not think that it is so used in this case. In its ordinary acceptation, it means a part of a whole subject or thing. It implies a division of an entire subject or thing into parts.

This is the construction which I draw from the language used by the testator, irrespective of any other considerations.

It will be seen, however, that the bequest in question does not constitute a distinct item in the will, but is in addition to a previous subdivision of one of the items, which clearly gives the sum of $100,000 to all the children collectively, to be paid to them on their attaining the age of twenty-one years. Again, it appears that the testator had not w'ater stock enough to answrnr a bequest of $600,000. I have alluded to the latter considerations, not as laying any particular stress upon them, but rather to show that there is nothing in the other parts of the will, or in the circumstances under which it was executed, which is unfavorable to the construction which I have given to the language used by the testator.

But it is said that he gave the sum of $150,000 to two of the sons of his daughter Dorothea, on the occasion of their marriage, and declared the same not to be in addition to the provisions in their favor by way of legacy under his will and codicils, but in anticipation and satisfaction thereof; and that, adding all the other legacies together, whether contingent or otherwise, they fall short of the sum of $150,000, unless the provision in question is interpreted to give $100,000 to each of the children. The advance which was made by the testator to his grandsons, upon the event of their marriage, was what he then supposed to be sufficient in reference to their new relations, and in reference to a state of circumstances different from that which existed at the time he made his will, and does not furnish any satisfactory evidence as to his intentions at that time. It is an extrinsic fact, and as far as any inference can be drawn from it, it is met by the other fact which has been alluded to, that at the time'the bequest.in question was made, the testator held only $120,000 of the stock mentioned therein.

[New-York General Term, October 3, 1853.

Edmonds, Edwards, Mitchell, Roosevelt and Morris, Justices.]

I think that the construction given to the will at the special term is correct; and that the judgment should be affirmed.