
    Matter of the Application for a Construction of the Last Will and Testament of Linda Werle.
    
      (Surrogate’s Court, Bronx County,
    
    
      July, 1915.)
    Wills—Construction of—When bequest not specific—Code Civ. Pro., § 2615,
    The first paragraph of a will bequeathed “ fifteen .shares of American Car and Foundry Preferred Stock, and twelve share's of United States Steel Common,” and the second paragraph, “ any money remaining to my credit in the Bank of Savings, in. the City of New York, and my gold watch and chain and bracelet with fifteen gold dollars attached)” to legatees named. ° 5
    ■ It appeared that the testatrix left only $225, in addition to the property bequeathed in said paragraphs of her will, which sum was not sufficient to pay debts, funeral and testamentary expenses.
    In a proceeding for the' construction of'said will under section 2615 of the Code of Civil Procedure, held: That the bequest made by the first paragraph is not a specific but a general legacy, and that the bequest of money in- the Bank of Savings made by the second paragraph is a specific legacy.
    That the second paragraph is not in effect a residuary clause.
    That the property bequeathed by the first paragraph must be applied to the payment of debts, funeral and testamentary expenses, if these exceed the sum of $225, before the property specifically bequeathed by the second paragraph can be applied to such purposes.
    Proceedings under section 2615, Code of Civil Procedure, for the construction of a will.
    John McKinlay Wight, for petitioner.
    George Harrison McAdam, for respondent Marion K. Hawes.
   Schulz, S.

This is a proceeding brought upon the petition of the executor named in the last will and testament of the decedent to obtain a construction of the latter’s last will and testament pursuant to the provisions of section 2615 of the Code of Civil Procedure. The particular portion of the will as to which he requests the determination of the court is contained in paragraphs First ” and “ Second ” thereof.

Paragraph First ” is as follows:

First. After my lawful debts are paid, I give and bequeath to Mrs. Marion K. Hawes, of Lyndhurst, in the State of Hew Jersey, fifteen shares of American Car and Foundry Preferred Stock, and twelve shares of United States Steel, common.”

Paragraph “ Second ” is as follows:

Second. I give and bequeath to my Hiece, Mrs. Eliza W. Oliver, of Lincoln, Hebraska, any money remaining to my credit in the Bank of Savings, in the City of Hew York, and my gold watch and chain and bracelet with fifteen gold dollars attached.”

The petition shows that at the time of the death of the decedent her property consisted of the money remaining to her credit in the Bank of Savings ” in the city of iSTew York amounting to eight hundred dollars, fifteen shares of the American Oar and Foundry Preferred stock, and twelve shares of the common stock of the United States Steel Corporation; and that she had no other property than that specifically mentioned in said will except the sum of two hundred and twenty-five dollars in cash in her personal possession, which latter sum was insufficient to pay her debts, funeral and administration expenses. These allegations of the petition are not denied and must therefore be accepted as true. (Code Civ. Pro., § 2546.)

The questions which the petitioner desires to have determined are:

(1) Is the legacy contained in the first paragraph a specific or a general legacy ?

(2) Is the legacy contained in the second paragraph of said will, to wit, “ money remaining to my credit in the Bank of Savings, in the City of Few York,” a specific or a general legacy ?

(3) To what fund or property must petitioner have recourse for the payment of debts, funeral and testamentary expenses of the decedent remaining unpaid after the application thereto as part payment thereof of said sum of two hundred and twenty-five dollars cash in the personal possession of the decedent at the time of her death ?

Roper on Legacies (page *191) defines a specific legacy as follows: The bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor,” and he remarks: “ It differs from a general or pecuniary legacy in this respect, that if there be a deficiency of assets, the specific legacy will not be liable to abate with the general legacies; and on the other hand, if such specific legacy be disappointed, as by failure of the specific fund, the legatee will not be entitled to any recompense or satisfaction out of the personal estate of the testator.”

Schouler on Wills and Administration (p. 521) defines a general- legacy as being “ one which does not necessitate delivering any particular thing or paying money out of any particular portion of the estate,” and a specific legacy as being “ the converse of this; or where a particular thing must be delivered, according to the terms of the bequest, or money paid out of some particular .portion of the estate,” and states that “ One important consequence of this distinction 'is, that, should the assets prove deficient, general legacies must abate, while a specific legacy does not” (except for creditors as a last resort).

Thomas on the Laws of Estates Created by Wills (p. 1494) ■ defines a legacy and says: “ A legacy is general and not specific, unless by its terms it indicates a particular part of the testator’s estate as the subject of the bequest.”

In Matter of King (122 App. Div. 354), the court says: “A legacy is general when it is so given as not to amount to a bequest of a particular thing distinguished from all others of the same kind.”

In the light of these definitions there can be no doubt that the legacy of the shares of stock in paragraph First ” is a general legacy, unless something in the language of that paragraph and the circumstances of the testator’s estate indicate that the testatrix intended the shares which she possessed to be the identical shares which she bequeathed to the beneficiary named. The fact that at the time of her death she actually owned the identical number of shares in the respective corporations which she bequeathed to the beneficiary it is urged manifest such an intention. The question is not a new one and I believe is no longer debatable.

In the case of Tifft v. Porter (8 N. Y. 516), the testator owned three hundred and sixty shares of Cayuga County Bank stock and by his will he bequeathed 240 shares of Cayuga county Bank stock to one legatee and 120 shares to another but without indicating that the shares bequeathed were to be taken from those which he owned at the time of his death. The court .adjudged that these legacies were not specific, and says in those cases in which legacies of stocks or shares of public funds have been held to be specific, “ Some expression has been found from which an intention to make 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.” (Citing Williams Executors, 842; Roper on Legacies, 2067. See, also, Shether v. Sherman, 65 How. Pr. 9; Holt v. Jex, 48 Hun, 528; Matter of King, supra; Spencer v. Hay Library Assn., 36 Misc. Rep. 395; Matter of Bergen, 56 id. 92; Osborne v. McAlpine, 4 Redf. 1.)

In my opinion it follows from the foregoing authorities that the bequest contained in paragraph “ First'” of the last will and testament under consideration is not a specific legacy but a general legacy.

As to the legacy contained in paragraph “ Second ” concerning which the executors appear in doubt, it is argued that the bequest of the money remaining to my credit in the Bank of Savings, in the city of Hew York ” is not a specific legacy for the reason that during the life of the testatrix she drew moneys from this bank, and that hence the amount on deposit at the time of her death was uncertain. The question whether a legacy is specific or general, however, does not depend upon the amount or even upon the certainty of the amount as is evident from the definitions heretofore set forth.

In Larkin v. Salmon (3 Dem. 270), the testatrix bequeathed to beneficiaries named “ all the money left in the West Side Bank, after carrying out the directions in the first three clauses of this my will.” In the first three clauses of her will she had provided for paying two legacies of $1,000 each, and also for fencing a plot in Calvary Cemetery, so that the amount which would remain in the West Side Bank was also uncertain. The learned surrogate held that the legacy in question was a specific legacy, “ Within the definition of that expression sanctioned by the highest judicial tribunals ” and cites numerous cases. In Estate of Beckett (15 N. Y. State Repr. 716), the bequest was of all the money that the testator died possessed of in savings banks, and here also the legacy was held to be specific.

Ror .can I see any weight in the contention that the testatrix intended by the bequest under consideration to dispose of the remainder of her estate, and that the clause was in effect a residuary clause. It is conceded that she had the sum of $225 in her personal possession and undisposed of by the will. These facts alone, in my opinion, show that the testator did not intend that paragraph “ Second ” should have the effect of a residuary clause. I hold that the legacy in question is a specific legacy.

A determination of the first two questions- propounded on this construction, it seems to me, is an answer to the third.

Section 2684 of the Code of Civil Procedure so far as material provides that “Articles not necessary for the support and subsistence of the family of the deceased, or not specifically bequeathed, must be first sold; and articles so bequeathed must not be sold until the residue of the personal estate has been applied to the payment of debts.”

It follows in the estate under consideration that the property which is the subject of the general legacy contained in paragraph “ First ” of the will must be applied to the payment of debts and of funeral and testamentary expenses, if they exceed the sum of $225, before the application thereto of the property mentioned in the specific legacy contained in paragraph “ Second ” thereof.

I construe the will in accordance with the above conclusions. Settle decree accordingly.

Decreed accordingly.

NOTE ON CONDITIONED LEGACIES.

CONDITIONS UPHELD BY THE COURTS.

The testator may impose any conditions that he pleases so long as they are not contrary to public policy or otherwise illegal, such as that an absent beneficiary on .return within a certain time. (Conner v. Sheridan, 116 Wis. 666.)

That a legatee bury the testatrix in a certain cemetery. (Matter of Barrett, 10 Misc. 491.)

That the beneficiary should be in the testator’s employ at the time of his decease. (White v. Massachusetts Inst. of Tech., 171 Mass. 84.)

That in the case of a legacy to a church a certain minister should remain for a certain time. (Caw v. Robertson, 5 N. Y. 125.)

That a certain vestment should be worn in church service. (In re Robinson, 1 Ch. 95. See also Dundee v. Dundee, 4 Macq. 228.)

That in the case of a devise of a building to be used for the purposes of a library, the name of the testator should be engraved on a marble slab to be placed and kept over the main entrance. (Jones v. Habersham, 107 U. S. 174.)

That children should be reconciled with their mother. - (Page v. Frazer, 14 Bush [Ky.] 205.)

That the legatee, a charitable society, should undertake in writing to the executors to have certain vaults in a cemetery painted periodically. (Roche v. M’Dermitt, [1901] Ir. 394.)

That a partnership should be formed. (McCallum v. Riddell, 23 Ont. 537.)

That the devisee or legatee should make a will in favor of a certain person. (In re Turner, 4 Ont. L. Rep. 578.)

That the money bequeathed should be needed by reason of sickness or misfortune. (Garvey v. Garvey, 150 Mass. 185, 22 N. E. 889.)

A will may limit the time when the legatee shall have an absolute interest, as on majority or otherwise. (Calvert v. Boullemet, 46 La. Ann. 1132, 15 So. 363.)

And it may make a legacy or devise dependent upon the condition of the estate. (Kirkman v. Mason., 17 Ala. 134.)

A will may make a legacy or devise dependent upon the birth of certain heirs. (McMasters v. Shellito, 14 Pa. Super. Ct. 303; In re Burrows, 2 Ch. 497.)

A will may make a legacy or devise dependent upon failure or issue. (Crawford v. Clark, 110 Ga. 729.)

A will may make a legacy or devise dependent upon the death of certain persons. (Williams v. Jones, 166 N. Y. 522.)

A will may make a legacy or devise dependent upon, claim- by the beneficiary. (Stover’s Appeal, 77 Pa. St. 282.)

A condition that a legatee shall assist to defend a certain lawsuit against the testator is not void where the will shows upon its face that he believed the suit to have been brought without cause. (Cannon v. Apperson, 14 Lea [Tenn.] 553.)

A conditional legacy to a person on condition that he or she shall not marry is legal. (Hogan v. Curtin, 188 N. Y. 162, 42 Am. Rep. 244; Merriman v. Wolcott, 61 How. Pr. 377.)

Such as a condition- a devisee shall not marry a man below her in social position. (Greene v. Kirkwood, 1 Ir. 130.)

That she shall not marry into a certain family. (Phillips v. Ferguson, 85 Va. 509.)

That she shall not marry until a certain age, as twenty-one. (Collier v. Slaughter, 20 Ala. 263. See Onderdonk v. Onderdonk, 127 N. Y. 196, 27 N. E. 839.)

Or she shall not marry without the consent of those interested in the devisee or legatee’s welfare. (Collier v. Slaughter, 20 Ala. 263, 27 N. Y. 196.)

The beneficiary may be required to remain single for a certain time only. (Densfield, Petitioner, 156 Mass. 265.)

It has been held that a gift to hold, “So long as she shall remain- unmarried” is valid. (Mann v. Jackson, 84 Me. 400, 24 Atl. 886; Harlow v. Bailey, 189 Mass. 208, 75 N. E. 259; Morgan v. Morgan, 41 N. J. Eq. 235, 3 Atl. 63; In re Holbrook, 213 Pa. St. 93.)

A gift intending to provide for the legatee while single may contain a valid condition against marriage. (Harlow v. Bailey, 189 Mass. 208.)

A will providing for the support of daughters as long as they remain single and need support is valid. (Trenton Trust Co. v. Armstrong, 70 N. J. Eq. 572.)

And devises of real estate may be limited in- duration by the marriage of the devisee. (Mann v. Jackson, 84 Me. 400; Com. v. Stauffer, 10 Pa. St. 350.)

A testator may devise certain property to one of his children, and provide that, if the ’ child should die "without having married, the property should go to another. (Sullivani v. Garesche, 229 Mo. 496.)

Or he may make a devise or bequeath to a person only in the event of his or her marriage. (McClelland v. McClelland, 132 Ky. 234.)

Conditions against the remarriage of the testator’s widow are valid. (Chapin v. Cooke, 73 Conn. 72; Chapin v. Marvin, 12 Wend. 538.)

That the legatee shall not forsake the Jewish religion or marry a Christion. (Laurence v. McQuarrie, 26 Nova Scotia, 164; contra, Maddox v. Maddox, 11 Cratt. [Va.] 804.)

A devise or bequest may be conditional on pursuing a certain trade or occupation. (Seeley v. Hincks, 65 Conn. 1.)

A condition held valid that a legatee or devisee educate his children in a particular religious faith. (Magee v. Oneill, 19 S. C. 170.)

A condition that beneficiary should withdraw from the priesthood in the Roman Catholic Church or membership in an order or society connected with such church, held valid. (Barnum v. Baltimore, 62 Me. 275.)

A condition that testator’s daughter, could not unite herself to any religious sisterhood or remain attached to such sisterhood, held valid. (Spencer v. See, 5 Redf. Surr. [N. Y.] 542.)

Á condition that a legatee should renounce the Roman Catholic priesthood held valid. (Ex p. Dickson, 1 Sim. N. S. 37.)

A codicil revoking the legacy to a testator’s daughter if she should become a. nun, held valid. (Laurence v. McQuarrie, 26 Nova Scotia, 164.)

A condition that a devisee or legatee should return or reside in a particular place held valid. (Newkirk v. Newkirk, 2 Cai. 345.)

Condition that a married woman should not reside where her husband lived was held valid as obliging her to live separate. (Wilkinson v. Wilkinson, L. R. 12 Eq. 604.)

Condition that beneficiary shall be -baptized with, or that he shall adopt and assume a certain name are valid. (Matter of Jackson, 20 N. Y. Suppl. 380.)

Condition that the beneficiary should show to the judge’s satisfaction that he is a reformed man, held valid. (Cassem v. Kennedy, 147 Ill. 660.)

Or that he shall ceased to be a spendthrift for a certain time. (Burnham v. Burnham, 79 Wis. 557.)

Condition that he shall abstain from the use of intoxicating liquors and tobacco and association with immoral persons, held valid. (Onderdonk v. Onderdonk, 127 N. Y. 196.)

A condition that he shall totally abstain from intoxicating liquors and card playing, held valid. (Jordan v. Dunn, 13 Ont. 267.)

A condition that a girl who ihas lived with testator shall remain in his family and conduct .herself as she has heretofore done until she reaches a certain age, held valid. (Reuff v. Coleman, 30 W. Va. 171.)

A gift over to a child in case her father becomes a drunkard or a vagabond, held valid. (Forsyth v. Forsyth, 46 N. J. Eq. 400, 19 Atl. 119.)

A condition that the beneficiary shall pay certain debts or sums of money to another, held valid. (Monjo v. Woodhouse, 185 N. Y. 295; Scott v. Cramer, 31 Ohio St. 295; Sherman v. American Cong. Assoc. 113 Fed. 609.)

And the same is true on conditions against the remarriage of a widower. (Stivers v. Gardner, 88 Iowa, 307.

A son may impose the condition as to the remarriage of his mother or a parent as to a child. (In re Hotz, 38 Pa. St. 422; contra, Crawford v. Thompson, 91 Ind. 266.)

A devise or legacy made to induce a future separation or divorce of husband and wife is void as against public policy and it takes effect absolutely. (Matter of Haight, 51 N. Y. App. Div. 310.)

A devise or bequeath may be so formed as to provide for one in case of separation or divorce. (Wright v. Mayer, 47 N. Y. App. Div. 604.)

A bequest providing for the support of a wife pending a present or contemplated separation from her husband has been held valid. (Witherspoon v. Brokaw, 85 Mo. App. 169.)

Property left in trust for a married daughter to become hers absolutely in event of her widowhood the provision was held valid. (Rittenhouse v. Hicks, 10 Ohio Dec. 759.)

A condition that the father shall not resume his relations as custodian of his child held void. (Witherspoon v. Brokaw, 85 Mo. App. 169.)

A devise to an infant as to condition that he shall within a certain time go to live with testator’s sister as her own son and remain under her sole guidance and guardianship until of full age is valid. (Johnson v. Warren, 74 Mich. 491.)

A condition in a will that a gift shall be void in case the beneficiary shall dispute the will is valid. (Bryant v. Thompson, 59 Hun, 545.)

It has been held that such conditions are not operative as against infants. (Bryant v. Thompson, 59 Hun, 545.)

A condition that any devisee who shall contest the will shall pay the expenses of both sides is valid, without limitation over. (Kayhart v. Whitehead, 77 N. J. Eq. 12.)

A condition that the beneficiary shall make no claim against testator’s estate is valid. (In re Morey, 1 N. Y. Suppl. 687.)

A limitation in unmistakable terms that the estate shall cease upon the-insolvency of the beneficiary may be valid, even without a limitation over. (Rochford v. Hackman, 9 Hare, 475.)

A devise or bequest may be conditioned upon the beneficiary pursuingpartieular lines of study or possessing a certain education. (Shepard v. Shepard, 57 Conn. 23,17 Atl. 173.)

Or his membership in a particular religious body or attendance at a particular church. (Magee v. Oneill, 19 S. C. 170.)

A condition held valid, that a devisee shall have the land as long as- he pays the taxes upon it, with limitation over. (Hoselton v. Hoselton, 166 Mo. 182.)

Gifts conditioned on the beneficiary’s rendering services or furnishing support or maintenance to another are held valid. (Matter of Tinsdale, 110 N. Y. App. Div. 857.)

CONDITIONS NOT UPHELD BY THE COURTS.

Conditional legacies or bequests are void if they are opposed to public policy or. otherwise illegal — such as a clause in a will prohibiting the division of the estate between the cities of New Orleans or Baltimore or that slaves choose their masters. (Osborne v. Taylor, 12 Gratt, [Va.] 117.)

A condition in a will declaring that a testator is not indebted .to any of his children who are legatees, and that if either of them so make a claim against the estate he shall not take anything under the will is unreasonable and invalid. (Matter of Vandervort, 62 Hun, 612.)  