
    In the Matter of the Judicial Settlement of Account of John F. Anderson, Jr., one of the Executors and Trustees Under the Will of George L. Pease, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      Filed December, 1896.)
    Legacies — Specific and general.
    After giving several legacies of “ shares of the capital stock ” of a certain corporation, worth less than par, the will gave to the executors in trust “ the sum of $50,000 of the capital stock ” of such corporation, “ or in ease I shall not hold that amount of such stock in addition to the amount mentioned in the foregoing clause of my will, I' direct them to take from my other personal property an amount sufficient to equal said sum.” Held, that such legacy was not a specific legacy of shares of stock, but a general legacy of money.
    Judicial settlement.
    Thompson & Koss, for executors; Putney & Bishop, for L. G. Gregory; Alfred F. Britton, for special guardian.
   Abbott, S.

At the time of his decease the testator was the owner of 3,750 shares of the capital stock of the “Boorum & Pease Company ” of the par value of $875,000, and of the market value of $187,500.

By his will he bequeathed to his executors in trust for the benefit of his .wife, “ all the stock that I may own at the time of my decease ” in certain corporations named; “ and also onthousand shares of the capital stock of the ‘ Boorum & Pease Company,’ ” and authorized the executors to sell all or any part of the said stocks and reinvest the proceeds thereof.

He made a similar trust provision for the benefit of his daughter, bequeathing “ all my stock in ’’ certain corporations named; and also 500 shares of the capital stock of the “ Boorum & Pease Company,” with a like authority to his trustees to sell any part of the said stock and reinvest the proceeds thereof.

Tbe " seventh ” clause of tbe testator’s will, wbicb requires construction in tbis proceeding, is as follows:

“ Seventh. I give to my executors or to those of them who shall qualify as such, tire sum of fifty thousand dollars of the capital stock of the ‘ Boorum & Pease Company,’ or in case I shall not hold that amount of such stock in addition to the amount mentioned in the foregoing clause of my will, I direct them to take from my other personal property an amount sufficient to equal said sum, and I direct them to hold said stock during the life of my wife’s sister, L. Gertrude Gregory, and 1 direct my executors to pay to her the net income thereof semiannually during her life; and upon her death I direct them to divide the principal so held in trust among her lawful issue share and share alike; but if she leaves no issue I direct that such principal sum shall then revert to the residue of my estate. And I authorize my executors in their discretion at any time to sell all o>r any part of said stocks; in which case I direct them to invest the proceeds of such sale in such securities as are or may be allowed by law fox investments of savings bank in the State of New York; or upon bond and mortgage upon real estate in this State in their discretion, the income arising from such securities to be paid to my wife’s sister semi-annually during her life as aforesaid.”

It is contended by the executors, on the one hand, that the testator by this clause has) made a specific legacy in trust of capital stock of the “ Boorum & Pease Company ” of the par-value of $50,000; and, on the other hand, by the beneficiary named in the clause, that the testator has thereby bequeathed a demonstrative legacy of $50,000, in cash, to be first realized out of the capital stock of the “ Boorum & Pease Company,” if testator owned sufficient thereof for the purpose at the time of his decease, any. deficiency to be made up out of any other personal property of the testator not previously disposed of by his will. Of course, it is the intention of the testator, as expressed in his will, which must control.

Seeking for the. expression of tbe will, which may aid ns' in arriving at the testator’s intention, we find that by the “ fourth ” danse of his will he bequeathes to his trustees “ one thousand shares of the capital stock ” of the “ Boorum & Pease Company.” By the “ fifth ” clause he bequeathes to his trustees, 500 shares of the “ Boorum & Pease Company.” By the seventh ” clause ho bequeathes to his trustees “ the sum of fifty thousand dollars of the capital stock of tire Boorum & Pease Company.” This change in phraseology indicates some difference of intention on the part of the testator in making the bequest by the “ seventh ” clause from that in making the bequests in the fourth ” and fifth ” clauses. In the fourth ” and fifth ” clauses he bequeathes a definite number of “ shares of the Capital stock ” in specific terms.

In the seventh ” clause ho bequeaths “ dollars of the capital ■stock.”

Again, by the “ seventh ” clause he directs his executors, in case he “ shall not hold that amount of such stock in addition to the amount mentioned in the foregoing clause ” of his will, to take from his “ other personal property an amount sufficient to equal said sum/' That sum must refer to “ the sum of fifty thousand dollars ” previously mentioned.

Again, tire clause under consideration must receive such a construction, if possible, as will render its language reasonable and harmonious under all circumstances and conditions.

It will not be assumed that the testator intended to bequeath a legacy of $25,000 upon the contingency of his owning 2,000 or more shares of the “ Boorum & Pease Company ” at the time of his decease, and a legacy of $50,000 upon the contingency of his owning only 1,500 shares of the stock at the time of his decease.

Assume that he had owned at the time of his decease 250 shares of the stock applicable to the payment of the legacy of the par value of $25,000, what sum would the executor then be required to take from tbe testator’s “ other personal property ” to equal said sum ?

This question would become difficult of solution under the executor’s contention. It would become necessary to interpolate the words “of the par,value”• after the words “dollars’’ for the purposes'of the interpretation of this clause.

In Tifft v. Porter, 8 N. Y. 516, the testator bequeathed to his wife 240 shares of Cayuga County Bank stock, and to one Harriet S. Glover, 120 shares of said stock. .At the time of his decease he owned exactly 360 shares of the bank stock mentioned. The testator died June 16, 1849; on August 14, 1849, a dividend of $1 per share was declared, payable September 1st. On August 16th testator’s will was proven, and on August 23s 1849, the said 240 shares were transferred to testator’s widow. The executors subsequently collected the dividends so declared upon the bank stock and the widow brought action for the amount thereof. It was held, by a divided court, that the legacies of the bank stock were general, not specific, and that plaintiff was not entitled to recover. At page 518, Johnson, J., defines the exact distinction between a general and specific legacy in the following language: “ A legacy is general, when it is so given as not to amount to a bequest of a particular thing or money of the testator, distinguished from all others of the same kind. It is specific, when it is a bequest of a specified part of the testator’s personal estate, which is so distinguished. Wms. on Exrs., 838. In those cases in which legacies of stocks or shares in public funds have been held to be specific, some expression has been found from which an intention to malee the bequest of the particular shares of stock could be inferred. Where, for instance, the testator has used such language as “ my shares,” or any other equivalent designation, it has been held sufficient But the mere possession by the testator, at the date of his will, of stock of equal or larger amount than the legacy, will not of itself make the bequest specific. Wms. on Exrs., 842; 1 Roper on Leg., 2067.”

Ifc thus appears that the mere ownership by a testator of personal property which he bequeaths does not constitute such bequest a specific legacy thereof; but, if the testator expresses an intention that the bequest is of specific personal property, constituting a part of his personal estate and owned by him at the time of his decease, the legacy then becomes a specific legacy of so much of such specific personal property.

The testator bequeaths the sum of fifty thousand dollars of the capital stock of the ‘ Boorum & Pease Company,’ or, in case I shall not hold that amount of such stock in addition,” etc.

He did hold that amount of capital at the time of his decease, whether the clause be construed as a bequest of $50,000 worth of the same at its par or market value. Therefore, the contingency stated becomes inoperative, except in so far as it may be useful in aiding us to arrive at the intention of the testator.

In Goldings v. Seward, 16 N. Y. 365, the bequest was of the sum of $1,200, and interest on the same contained in a bond and mortgage.” Selden, J., at page 367, after considering and laying down the distinction between general and specific legacies, writes: " But, aside from all considerations of this sort, the idea that this legacy was intended to be specific, appears to,me to be excluded by the peculiar phraseology of the will itself. The language is: ‘I give and bequeath,’ etc., not a certain bond and mortgage, but ‘ the sum of $1,200, and interest on the same, contained' in a bond and mortgage,’ etc. The bequest is of a certan sum of money. The bond and mortgage is simply referred to as the source from which the money is to be derived. The form of expression is not one which would .naturally be chosen to manifest an intent to make a specific be.quest of the bond and mortgage itself. The leading subject of the gift is not the bond and mortgage, but the sum of money mentioned; and it could scarcely be claimed, if one-half of the mortgage had been paid in the lifetime of the testatrix, that the bequest was thereby reduced to the sum of $600 instead of $1,200.”

As authority, this case is very much in point, and the language employed is almost identical with that employed by the testator in the will under consideration.

In his case the bequest is of a certain sum of money. The capital stock is simply referred to as the source from which the money is to be derived.

Moreover, the testator has deliberately changed the form of bequest from that contained in the previous clauses of the will in which he expressly bequeathes shares of stock. See, also, Shethar v. Sherman, 65 How. Pr. 9.

The testator by the “ twelfth ” clause of the will also fixes the legacy to his wife’s sister at the sum of $50,000.

I am of the opinion, therefore, that the legacy bequeathed by the “ seventh ” clause of the testator’s will is not a specific legacy of shares of capital stock, but a general legacy of money) and would be so construed if this clause stood by itself unaided as to its construction by other parts of the will. But my conclusion is strengthened by the difference in the language em-employed by the testator in the “ seventh ” clause from that employed by him in the fourth ” and fifth ” clauses, as well as by the alternative provision contained in the seventh clause.

Decreed accordingly.  