
    In the Matter of the Judicial Settlement of the Account of Caroline Solomon, as Administratrix with the Will Annexed of Klara Simon, Deceased. Congregation Talmud Torah Beth Avrohom, Appellant; Caroline Solomon, as Administratrix with the Will Annexed, etc., Respondent.
    
      (Supreme Court, App. Div., First Department,
    
    
      December 31, 1914.)
    Will — Construction — Specific Legacy.
    A bequest of “the mortgage and bond' for $'19,000, now held; by me against premises on 176th Street,” followed by several general legacies payable out of the estate, constitutes a specific legacy, which can only be satisfied by delivering to the legatee the identical thing given and> hence, fails where the decedent never owned such bond and mortgage.
    Appeal by Congregation Talmud Torah Beth Avrohom, from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 3d day of January, 1914, judicially settling the accounts of Caroline Solomon, as administratrix with the will annexed, and also from the order confirming the report of the referee herein pursuant to which the decree was entered.
    Louis Susman, for the appellant.
    Frank H. Gerrodette, for the respondent.
   McLaughlin, J.

— In January, 1909, Klara Simon died, leaving a last will and testament, which bore date January third of the same year. So much of the will which hears upon the question to he considered is as follows:

First. After my lawful debts are paid, I give and bequeath to the Talmud Thora, of The Bronx, on 146th Street, in the Borough of the Bronx, City of ¡New York, the mortgage and bond for $10,000, now held by me against premises on 116th Street upon condition that the,prayers for the dead be recited therein on all Jewish holidays, and that the said Synagogue maintain the perpetual light customary therein.
Second. I give and bequeath to Mr. Ike, * * * the sum of Ten thousand ($10,000) dollars.
Third. I give and bequeath to Mrs. Epstein, * * * the sum of Five thousand ($5,000) dollars.
Fourth. All the rest, residue and remainder of my estate, both real and personal, and wheresoever situate, I give, devise and bequeath to my sister, Caroline Solomon, including certain bonds and mortgages aggregating Sixty thousand, five hundred ($60,500) dollars * *

The will was probated, and as no provision was made in it for an executor, Caroline Solomon, the residuary legatee, was appointed administratrix with the will annexed. She administered the estate and filed her accounts for judicial settlement. Objections were made thereto by the appellant — it being clearly identified as the legatee mentioned in the 1st clause of the will. One of the objections was that the appellant was entitled to $10,000, payable out of the estate of the testatrix. The objection was referred to a referee, who made a report overruling it. He also made certain other rulings as to a jury trial, which are unnecessary here to consider. An order was subsequently made in the Surrogate’s Court, which modified the report as to a jury trial and confirmed the balance of it, and a decree was entered accordingly. The appeal from the decree brings up for consideration so much of it as holds, in effect, that nothing passed to the appellant under the testatrix’s will.

I am of the opinion that the decree should be affirmed. The bequest to the appellant was not money or the proceeds of property, but of a certain, definite, specified thing, viz.: “ The mortgage and bond for $10,000, now held by me against premises on 176th Street.” It was a specific legacy. (Crawford v. McCarthy, 159 N. Y. 514 ; Matter of Hendrickson, 140 App. Div. 388 ; Matter of King, 122 id. 354.) The thing given could be distinguished from all other property belonging to the testatrix at the time of her death, could be readily identified if it existed, and delivered to the legatee as the particular thing given. This made it, within all the authorities to which my attention has been called, a specific legacy.

It is conceded by the appellant — at least it does not dispute the fact — that the testatrix did not own, at the time the will was executed or at any other time, the bond and mortgage specified in the first clause of the will. Nor did she own a $10,000 mortgage upon any other property. The subject of the bequest never having been in existence, so far as appears, there was a complete failure of the legacy. (Beck v. McGillis, 9 Barb. 35 ; McNaughton v. McNaughton, 34 N. Y. 201 ; Burnham v. Comfort, 37 Hun, 216 ; Tomlinson v. Bury, 145 Mass. 346.) Such a legacy could only be satisfied by delivering to the legatee the identical thing given. (Beck v. McGillis, supra ; Matter of Matthews, 122 App. Div. 605 ; Humphrey v. Robinson, 52 Hun, 200.)

That the testatrix intended it as a specific legacy is apparent not only from the language used in the first clause of the will but also when such clause is read in connection with the second, third and fourth clauses, which are general legacies, payable out of the estate. That she intended to limit the gift to the appellant to the bond and mortgage mentioned is, I think, also evidenced by the fact that in a will made by her on the third of November preceding — which was revoked by the one here under consideration — she gave to the appellant the sum of $10,000 — a general legacy. ■

It is undoubtedly true, as contended by the appellant, that in the interpretation of wills, the intention of a testator is to govern, and. where that can be ascertained from the will, then the court can subordinate the language used to the intention, and in such case may reject words and limitations, supply or transpose them to get at the meaning. (Starr v. Starr, 132 N. Y. 154 ; Williams v. Petit, 138 App. Div. 394; Holt v. Jex, 48 Hun, 528.) But that rule has no application here, because, as already indicated, what the testatrix intended to do was to give, not $10,000 to the appellant, .but the bond and mortgage specified. To hold, because the testatrix never owned such bond and mortgage, that the bequest is, therefore, payable out of her estate, would not only be doing violence to her intention, but making a new will for her.

I am of the opinion the decree is right and' should be affirmed, with costs.

Iugbaham, P. J., Laugh list, Dowlihg and Hotchkiss, JJ., concurred.

Order affirmed, with costs.  