In re Logan's Estate , 69 N.Y. Sup. Ct. 238 ( 1891 )

Barnard, P. J.

The testator, William J. Logan, died, leaving real and personal estate. By the will certain real estate and personal property is given to the widow in lieu of dower. A money legacy of $8,000 is given to a nephew, and a legacy of a similiar amount is given to four sisters. By the fifth clause of the will there is a gift of a life-estate in a similar sum to another sister, Jane Clanny, with a gift over; after the end of the life-estate, to the two children of Jane Clanny, Eleanor and Jane Eliza Clanny. All these legacies are made payable out of the personal estate. By the thirteenth clause of the will, the rest, residue, and remainder of the estate to be sold, and, after paying the several legacies in full, to divide such remaining sum, if there should be any, “to and among the legatees mentioned in this, my will, to whom I hereby give and bequeath the same, share and share alike.” The question is whether the Jane Clanny family take their share in this residue as only one. There is nothing in the will from which it can be inferred that the testator intended to treat the share to be given to his sister Jane in any different way from the other legacies, except that Jane’s share was given for life, with remainder to her children, and the other shares were given absolutely. Strictly speaking, Jane and each of her children were legatee^, but not such under the words and meaning of the will. In the same clause, (thirteenth,) the testator directs the payment of the “several legacies,” and of the “aforesaid legacies,” which words only cover the amount of $8,000 to Jane; and then he speaks of his division among the legatees mentioned in the will. The evident intent is that the Jane Clanny share is one legacy, and she is the only legatee intended to be embraced in this first residuary clause. The judgment should therefore be so modified as to divide the estate in seven parts, and directing that Jane Clanny take' the one-seventh thereof. The executor has no right to keep this residue for Mrs. Clanny, as the trust is as to the $8,000 only. The children have no right to this residue, as none is given them in any fund except the remnant of the $8,000. Judgment modified, with costs to all parties out of the estate. All concur.