
    In the Matter of the Judicial Settlement of Patience C. Logan et al., Ex’rs of William J. Logan.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Will—Legacms—Construction.
    By liis will testator gave property to his wife in lieu of dower, legacies of $8,000 each to five of his relatives and a life estate in a similar sum to his sister Jane, with a gift over to her children. The residue was directed to be sold and divided, after the payment of the several legacies, among the legatees mentioned in the will. Held, that the evident intention of the testator was that the provisions in the first clause for the benefit of Jane and her children constituted but one legacy, and she alone is the legatee intended to he embraced in the residuary clause; that she took one-seventh of the residue and her children took no rights therein.
    
      Appeal by Patience C. Logan, as executrix, and William E. Keys and William Logan, as executors of the will of William J. Logan, deceased, from the portion of the decree of the surrogate’s court of Kings county, dated June 18, 1891, commencing with the words, “That the executors do divide the balance then remaining, to wit: the sum of eleven thousand three hundred and two and 69-100 dollars, into nine (9) equal parts; that they pay one of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to Patience 0. Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars to Ann E. Farley ; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to Mary Isabella Gumming; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-10*0 dollars, to Eleanor S. Keys; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to William Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to Adaline B. Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 86-100 dollars, to Jane Clanny ; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 86-100 dollars, to Mary Eliza Clanny; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 86-100 dollars, to Eleanor Bockfellow.”
    
      Stitt & Phillips (D. G. Rollins, of counsel), for app’lts ; William D. Veeder, for resp’ts.
   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 similar 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 Mary 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 is 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 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 legatees, 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.

Pratt and Dykman, JJ., concur.  