
    Marvin et al. v. Rector, Etc., St. Luke’s Episcopal Church et al.
    
    
      (Supreme Court, Special Term, Erie County.
    
    June 10, 1891.)
    Wills—Construction.
    A will bequeathing $25,000 to a library for the purchase of oil paintings which shall “possess merit as works of art, ” and $5,000 for “useful and suitable books, ” both of which the executors are to procure and “deliver, ” and bequeathing all the rest of the estate to a residuary legatee, must be construed as intending that the expense of procuring and delivering the books and pictures shall be paid out of the legacies to the library.
    Action by Robert H. Marvin and others, executors of Mary A. Prendergast, against the rector of St. Luke’s Episcopal Church and others, for construction of a will.
    
      Frank, W. Stevens, for plaintiffs.
   Ward, J.

Mary A. Prendergast died at Jamestown, IT. Y., in December, 1889, having made, published, and declared a last will and testament, in which she appointed the plaintiffs her executors. In this will, alter providing for the payment of her debts and funeral expenses, she gives various legacies in 17 clauses of the will, and the eighteenth clause provides as follows: “Eighteenth. I hereby further will and direct my executors hereinafter named, within eighteen months after my decease, to use and expend from my estate the sum of $5,000 in the economical and judicious purchase-of useful and suitable books for the reference library of the James Prendergast Library Association; of Jamestown, N. Y., and that my said executors-deliver said books when purchased to the trustees of said library association. And I also further will and direct my said executors to use and expend from my estate within the said period of eighteen months the sum of $2,500 in the-purchase of oil paintings which possess merit as works of art, and, when purchased, I hereby direct my said executors to deliver the same to the trustees of said James Prendergast Library Association, upon a proper assurance by said trustees that the said oil paintings shall be forever kept, preserved, and properly and suitably displayed in the library building of said association in the said city of Jamestown.” The nineteenth clause gives to the executors-$1,000 each; and the twentieth clause is, so far as is important here, as follows: “Twentieth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, both real and personal, to the rector, wardens, and. vestrymen of St. Luke’s Episcopal Church, in the said city of Jamestown.” The twenty-first and last clause of the will appoints the plaintiffs as executors. It is alleged in the complaint that the defendants, the James Prendergast Library Association, and the rector, wardens, and vestrymen of St. Luke’s Episcopal Church, were duly incorporated, and existing when.the said will took effect. None of the defendants answered or appeared in tlie action except the defendant Charles Norton, who simply appeared therein.

The executors are in doubt, as appears by the complaint, as to the true construction of the eighteenth clause of the will above set forth, and they bring this action, and submit to the court the said clause for construction, and allege that the question has arisen, “whether, in purchasing the books and paintings named in the said eighteenth clause of the said last will and testament, the-plaintiffs are required or entitled to expend the full sum of $5,000 for such books and for the purchase price thereof, and the full sum of $25,000 in the purchase-of said oil paintings, as and for the purchase price thereof, and that the necessary expenses by the plaintiffs incurred and made in such purchase be charged to the estate generally, and be paid from the general fund of such estate, or whether the said expenses shall be paid from the legacies themselves; that is to say, whether the expenses incurred in purchasing the books and delivering them at the library building aforesaid shall be paid from the said sum of $5,000, or whether the like expense in the purchase of said oil paintings shall be paid from the said sum of $25,000.” Erom an inspection of this will it is apparent that the testatrix distiibuted a large amount of property to many different persons and objects, with remarkable clearness and precision as to amount and beneficiaries, and what disposition should be made of the money or property bequeathed; and unless there is some doubt or confusion growing out of tliis eighteenth clause none can be perceived in the will. Had she intended to have devoted the whole sum of $5,0U0 to the purchase price of books alone, or the $25,000 to the purchase price of the paintings alone, the simple and direct method would have been to have said so, and that would have been in keeping with the clear and direct statements of the other portions of the will; but she devotes the $5,000 to “the economical and judicious purchase of useful and suitable books,” etc., “* * * and that my said executors deliver the said books when purchased to the trustees of such library association.” The same provisions are made with reference to the purchase and delivery of the oil paintings, and they are to “possess merit as works of art;” so that the will plainly contemplates that in the discharge of this duty the executors shall exercise care and judgment, and shall procure and deliver these books and paintings, and they shall be suitable and proper for the purposes for which they are purchased. There is a large amount of money devoted to these objects, and enough to cover all probable expense, and still carry out the purposes of the testatrix. The executors are thus clothed with ample means to discharge this important trust. We must assume that the testatrix understood the expense of procuring this large number of books, and selecting them with care, so that they should be “suitable,” and also the unavoidable expense of procuring such works of art and valuable paintings as she desired, which must necessarily involve time and travel, possibly to foreign countries, or at least to distant cities, where such paintings could be found, and where proper selections could be made, and that such expense would be considerable. Had she intended to have charged this expense upon the residuum of the estate, it is probable that the will would have so provided. It is not reasonable to suppose that the testatrix intended to have two separate funds in regard to this object,—one for the purpose of the purchase price of the books and paintings, and the other for the expense of procuring and delivering them. The ordinary and natural conclusion would be that when she had provided a fund (especially a large one) to carry out a particular purpose, she intended that fund to cover all the costs and expenses necessary for tlie accomplishment of that purpose. There is nothing in the will to indicate a different conclusion. On tlie contrary,-the twentieth and last clause (except the one appointing executors) expressly devises and bequeaths “all the rest, residue, and remainder of the estate, both real and personal,” to the rector, etc., of St. Luke’s Episcopal Church; so that all the property, except the specific bequests in tlie preceding clauses of the will, goes to the residuary devisee and legatee, and nothing is left out of which to realize the expenses contemplated by tlie eighteenth clause except the funds therein provided. The conclusion is irresistible that the testatiix intended that all the costs and expense of procuring and delivering the books should be paid out of the $5,000, and all the costs and expenses of procuring and delivering the paintings should be paid out of the $25,000, and that such is the true intent and meaning of the will, and such is the construction to be given it. Judgment is ordered accordingly, the plaintiffs to recover their costs and disbursements of the action, to be paid out of the residuum of the estate.  