
    In the Matter of the Judicial Settlement of the Account of Daniel J. Hawks, as Executor, etc., of William H. Hawks, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed June, 1898.)
    Legacies — Savings Bank Deposits Not Included in Bequest oe Money “ In My Business Bank.”
    Testator’s will, after giving the stock, fixtures and good will of his business to his brother, and legacies to his brother and daughter, gave to his widow “ all money that may be due me at the time of my decease from my undertaking business, or from any other' source whatever; also whatever money I may have in my business bank.” It further directed the brother to collect all money that might be due to the testator at the time of his death and pay the same to the widow. Held, that the bequest to the widow did not include moneys on deposit in savings banks.
    Judicial settlement of tbe account of an executor.
    Oscar Frisbie, for executor; Stickney, Spencer & Ordway .(Otto C. Wierum, Jr., of counsel), for widow, Adele Hawks; Huy 0. Frisbie, for Emily A. Burghman, a legatee.
   Arnold, S.

'Tbe testator, by tbe second clause of bis will,, gave to bis brother all tbe stock and fixtures contained in and around bis undertaking business; also bis borse, wagon, harness, whips, robes and blankets; also tbe good will of said business; and by the fourth clause gave to his wife all money that might be due him at tbe time of bis decease from bis undertaking business, or from any other source whatever; also whatever money be might have in bis. business bank, and by the fifth clause directed bis brother to collect all money that might be due him at the time of bis decease and pay tbe same to tbe testator’s widow as soon as collected. I think it is evident from the provisions noted that tbe testator intended thereby to dispose of all bis business assets. By tbe second clause of the will.he gave to bis said brother the sum of $500, to be paid to- him as soon after bis decease as possible; and by the third clause be gave to bis daughter the like sum of $500 for her own use absolutely. No other provision is made in favor of the latter. It appears that he kept a business account in the Greenwich Bank, and had at the time of his decease a balance therein to his credit. He had also several savings bank accounts upon which there was also at his decease a considerable amount to his credit, more than enough to satisfy the two pecuniary legacies to his daughter and to his brother. The widow claims that the language of the fourth clause of the will entitles her not only to the balance in the Greenwich Bank, but also to the balance in the savings banks, insisting that the words “ all money that may be due me at the time of my decease from my undertaking business, or from any other source whatever; also whatever money I may have in my business bank,” includes the moneys in the savings banks. If this interpretation is correct there would be nothing which could be applied to the satisfaction of either of the money legacies, as the estate seems to have consisted entirely of his business, and the personal property used in connection therewith, the moneys in the Greenwich Bank, and the accounts due him from his business transactions, all of which he specifically gave to his wife and his brother, some household furniture and personal ornaments, also specifically bequeathed to the same legatees, and the moneys in the savings banks.- I think it was his intention not to include the latter in the specific bequest to his wife, notwithstanding the use of the words “ or from any source whatever,” and this is evidenced by his use of the words following, “ also whatever money I may have in my business bank.” While it may be conceded that the savings bank deposits did in fact represent .an indebtedness of those institutions to him, it was apparently not so considered by him, and he had the same impression with regard to any balance which, he might have to his credit in his business bank; otherwise be would not have- deemed it necessary, after the general language previously used, to make a specific bequest of tbe latter. It cannot be assumed, unless the language of the will absolutely compels such a construction (which I think it does not), that after giving the pecuniary legacies to his daughter and his brother he intended by the subsequent clause to specifically devise to his wife all his property which could be applied to the payment of such legacies. The result of any other construction may be that as to the moneys in the savings banks (as they exceeded the aggregate of the pecuniary legacies) they are not all disposed of by the will, as there is no residuary bequest. I do not think, however, that this fact should be held to deprive the daughter and brother of their legacies, which I think it was clearly intended by the testator they should receive, and which by holding that the savings bank deposits were not included in the specific devise to the wife can be paid to them. The referee’s report is confirmed and the exception thereto overruled, and a decree may be presented which shall direct the payment of the pecuniary legacies.

Decreed accordingly.  