
    Frederic P. Olcott, as Executrix, Etc., Plaintiff, v. Felix Ossowski et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1901.)
    Legacy — Demonstrative — Disposition of surplus income of an annuity — Suspension of power of alienation.
    A legacy in the words “I give nine thousand dollars to Maria Uppenkamp * * * which are invested as follows ”, a list of securities being set forth, is demonstrative and not specific and the value of the securities in excess of nine thousand dollars passes as in intestacy where no other provision of the will embraces or controls it.
    
      A bequest to a brother of an annuity, payable from the income of shares of the testatrix in a corporation, to the extent of six hundred dollars “ until he will be fifty years old; after that time (in 1904) ” the whole capital to be given to his daughter or, in case of her death to the brother and his wife, is not assailable as suspending the power of alienation for a period not measured by lives, gives the brother only six hundred dollars per annum, and, in the absence of a residuary clause in the will, entitles the daughter to the surplus income of the shares as the owner of the next eventual estate, if the gift be deemed contingent, or, if it be deemed vested, entitles her thereto as increase belonging to the person in whom ownership has been vested by a specific bequest.
    Action for construction of will.
    Butler, Uotman, Joline & Mynderse, for plaintiff.
    Montgomery Hare, for defendants Hppenkamp.
    John E. Abney, for defendants Anna M. Ossowski and Felix Ossowski.
    Percy Jackson, for defendant Franz Ossowski.
    Lewis L. Delafield, for defendant Anna B. Ossowski.
   Bishoff, J.

The legacy to the defendant Maria TJppenkamp is thus framed: I give nine thousand dollars to Maria Hppenkamp * * * • which are invested as follows ”, a list of securities being then set forth, and the value of the securities now being greater than $9,000, a judicial construction is sought.

I find no room for doubt, under the authorities, that this legacy is to be construed as demonstrative, not specific (Crawford v. McCarthy, 159 N. Y. 518-519; Giddings v. Seward, 16 id. 365), and the excess of the value of the securities described over the amount of the legacy, must be disposed of under some other provision of the will or upon the theory of intestacy.

It thus becomes necessary to examine the instrument with a view to the discovery of some residuary provision which would cover the excess of this legacy, but while mindful of the rule which calls for a construction against intestacy in cases of doubtful testamentary provisions, I cannot find reasonable ground for holding that the disposal of this excess can fall within the will

The only residuary clause is' as follows: “ The rest of my property, my silver tea-set, table silver, toilet silver, jewelry, dresses, etc., is to be sent to the children of Dr. August TTppenkamp,” and this clause is subject to the provisions of the following codicil: Whereas, by my said will I have bequeathed my silver tea-set, table silver, toilet silver, jewelry, dresses, etc., to the children of Dr. August Uppenltamp; Now I hereby revoke said bequest, and I do hereby devise and bequeath all of my movable property and personal effects of every kind and description, such as silverware, toilet silver, jewelry, wearing apparel and all other goods and chattels, not consisting of investments, unto my friend Mary Ellen Hoyt, wife of Thomas E. Hoyt, of North Long Branch, N. J., her heirs and assigns forever.”

This codicil operated to revoke the residuary bequest, unless by the words the rest of my property,” as contained in that bequest, the testatrix intended to refer to property other than the silver tea-set ” and other chattels ■ specified immediately thereafter, but if the words “ the rest of my property ” were intended to be comprehensive, the specific mention of the silver, jewelry, dresses, etc., was wholly unnecessary.

In my view, the intention was to limit the bequest to the personal belongings, which were instanced by the description, and the codicil materially aids this construction.

The codicil recites the bequest, as contained in the will, the recital being “ Whereas, I have bequeathed my silver tearset, table silver, toilet silver, jewelry, dresses, etc.,” and then proceeds to revoke the bequest, giving all movable and personal property “ not consisting of investments ” to a different legatee. The intention to revoke the bequest, as made, is so apparent that it would do violence to the plain meaning of words to treat this residuary clause in the will as still operative. ■ The testatrix evidently omitted the recital of the words the rest of my property ” when revoking the bequest, simply because those words added nothing, and her understanding of what she had originally bequeathed is made clear by the explicit description of the subject of the bequest contained in the provision whereby she changed the legatee.

The codicil disposes of the residue of all personal property, not consisting of investments, and.I must construe the residuary clause of the will as having had no broader scope, and as revoked in toto.

Therefore, the surplus of the bequest to Maria TJppenkamp is to be distributed as upon intestacy.

The remaining question involves the construction of the following bequest: I give to my brother Felix Ossowski * * * an annuity per annum payable quarterly of the income of my fifty shares in the Standard Oil Company. * * * The sum my brother Felix is to get per annum amounts to $600, until he will be fifty years old; after that time (in 1904) the whole capital of the Standard Oil shares mentioned is to be given to his daughter, Anna Bertha,’ or, in case of her death, to himself and his wife,” etc.

The income from the stock referred to being in excess of $600, and there being no room for dispute as I view the case, that the annuity is absolutely limited to that sum, the question of the disposition of the surplus income depends in a measure upon the nature of the bequest of the stock itself.

It has been suggested that this legacy of the shares is void in that the power of alienation is suspended for a period not measured by lives, the contention being that the suspension is to endure until the year 1904, absolutely. This I do not take to be the reasonable interpretation of the words used. Felix is to be paid the annuity until he reaches the age of fifty, and the date is noted, obviously, for better certainty as to the time when he would reach that age. His death before that time would bring the intervening estate to a close, for there is no possibility of an intention to keep the annuity alive for any purpose thereafter, and, in this aspect, the suspension of alienation is in fact to endure for a period no greater than that measured by a life.

The bequest of the shares being valid, and there being no residuary clause in the will, the surplus income properly belongs, to the defendant Anna Bertha Ossowski, as the owner of the next eventual estate,” if the gift of the shares be construed as creating a contingent estate (Pray v. Hegeman, 92 N. Y. 508; Laws of 1896, chap. 547, § 53; Laws of 1897, chap. 417, § 2), and, on the theory of a present vested estate in the principal, the same result would follow, for the increase, except as otherwise disposed of by the will, would belong to the person in whom the ownership of the property itself was thus vested through a specific bequest.

Isenhart v. Brown, 2 Edw. Ch. 341, 347; Murphy v. Marcellus,. 1 Dem. 288.

Form of decision and judgment may be submitted accordingly. Affidavits on the question of the amount of an additional allowance to the plaintiff are desired. Costs to all parties, but without allowances to defendants, except to guardian ad litem, payable out of funds belonging to the infant. An affidavit should be furnished showing the amount thus applicable to an allowance to the guardian, and the services performed.

Ordered accordingly.  