
    George E. Waldo and Others, as Executors, etc., of Helen Thornton Campbell, Deceased, and George E. Waldo, Individually, Respondents, v. Florence Hayes, Respondent, Impleaded with Hilda M. Lomax Iggulden and Others, Appellants, and Others, Defendants.
    
      Will — it speaks as of the testator’s death — an article answering the description of one bequeathed thereby passes to the legatee although it was not in existence when the will was made.
    
    A will speaks with regard to personalty as of the date of the death of tire testator, •and any article of personal property which the testator owns at the time of his death, which answers the description of an article bequeathed,.passes -under .the will to the legatee named therein, although said article may not be the identical article owned by the testator at the time the will was executed.
    The 8th clause of a will provided as follows:
    “ Eighth. I give and bequeath to Florence Hayes, of Buffalo, New York, all my china ware and my diamond brooch.”
    The 17th clause of such will provided:
    “ Seventeenth. I give and bequeath to Mrs. Lomax, of Dewitt Street, near Breckenridge Street, Buffalo, New York, and to her daughters, Hilda and Ethel, such of my wearing apparel as they may choose and any jewelry not otherwise disposed of in this will.”
    At the time of the execution of the will the testatrix owned but one diamond brooch, which she subsequently delivered in part payment for another brooch. The latter brooch Was the only one which she owned at the time of her death.
    
      Held, that the brooch passed to the legatee mentioned in the 8th clause of the will, and not to the legatees mentioned in the 17th clause thereof.
    Appeal by the defendants, Hilda M. Lomax Iggulden and others, from so much of .a judgment of the Supreme Court in favor of the plaintiffs and the defendant Florence Hayes, entered in the office of the clerk of the county of Erie on the 14th day of March, 1904, upon the decision of the court, rendered after a trial at the Erie Special Term, as directs that under and by virtue of the 8th clause of the will of Helen Thornton Campbell, deceased, the diamond brooch, owned by her at the time of her death, became and is the property of Florence Hayes.
    The action was commenced in July, 1903, to obtain a judicial construction of the last will and testament of Helen Thornton Campbell,, deceased, as to which certain controversies had arisen.
    
      
      Eugene M. Bartlett, for the appellants.
    
      Adelbert Moot, for the executors, respondents.
    
      Irving I. Fisk, for the respondent Hayes,
   McLennan, P. J.:

Helen Thornton Campbell died on the 10th day of January, 1903, leaving a last will and testament which was dated and executed by her on the 8th day of March, 1898, the 8th clause of which is as follows:

“Eighth. I give and bequeath to Florence Hayes, of Buffalo, New York, all my china ware and my diamond brooch.”

The 17th clause of the will provides:

Seventeenth. I give and bequeath to Mrs. Lomax, of Dewitt Street, near Breckenridge Street, Buffalo, New York, and to her daughters, Hilda and- Ethel, such of my wearing apparel as they, may choose and any jewelry not otherwise disposed of in this will.”

Upon the probate of the will of the testatrix the respondent Florence Hayes, the beneficiary named in the 8th clause, claimed to be entitled to receive from the executors of said will the diamond brooch in question, which the learned trial court has found was the only article owned by the testatrix at the time of her death which answered the description contained in said 8th clause. The appellants claimed that as such brooch Was not the one owned by the testatrix at the time the will was executed, it passed to them as an article of jewelry not otherwise disposed of, under the 17th clause of the will. Such controversy, together with some others arising under other provisions of the will, having arisen, the executors brought this action to obtain a judicial construction thereof. Upon the trial the court decided that the brooch in question passed to the respondent, under the 8th clause and should be delivered to her or to her attorneys, and decreed accordingly. The beneficiaries under said 17th clause have appealed from such portion of the judgment entered upon said decision as determines the ownership of said brooch to be in the respondent and directs the delivery thereof.

The evidence is uncontradicted that in September, 1897, more than a year prior to the execution of the will,, the testatrix purchased of Tiffany & Co., New York, a diamond brooch, and paid therefor the sum of .$1,500. This brooch was the only diamond brooch, so far as appears, owned by the testatrix at the time her will was executed. The court also found that in December, 1899, after the will was executed. she purchased of the same firm another diamond brooch for which she paid $500, and that on May 23, 1900, she purchased from Tiffany & Co. a diamond brooch valued at $2,500, giving therefor the two brooches theretofore purchased by her and paying $350 in addition thereto; that she retained this last-mentioned brooch down to the time of her death and that it was the only one owned by her at that time.

The question presented .by this appeal would' seem to-be settled by authority. The courts of this State have uniformly held, if we understand the decisions correctly, that as to personalty the will of a testator speaks as of the date of the death of the testator, and that any. article of personal property which the testator owns, at the time of his death, which answers to the description of an. article bequeathed, passes under the will to the legatee named therein, although such article may not be the identical article owned by the testator at the time the will was executed.

In the case of Brundage v. Brundage (60 N. Y. 544) the court said : “ It is a general rule that a will speaks from the time of the death of the testator. This rule is not excepted from, in the case of a general bequest of a particular description, as of an ascertained number of shares of a. particular stock.”

In that case the controversy arose over certain shares of stock of the New York Central Railroad Company which were bequeathed by the testator to his wife for her sole use and benefit during her life, an.d after the execution of the will the railroad company issued what was styled “ interest certificates.” It was claimed that the issuance of such certificates was illegal and had the effect to impair the value of the certificates of stock willed by the testator to his wife. In discussing the question still further the court (at p. 548) said : “It is to be observed that he (the testator) did not bequeath to her (his wife) any specific share, definitely described by numbers or otherwise. Had he died without owning any shares of the stock of the New York Central Railroad Company the legacy to his widow would not have been adeemed, and it could have been made good, by the' purchase and transfer to her of any shares, to the number given, to be had in the market. Had they been bought in the market, the ownership by her for life would have conferred upon her such rights and interests as belonged or were incident to the shares at that time, and not those which had at some prior time belonged to them, but had been taken away. And it is not different if, to satisfy the legacy, the executors make use of shares found among the assets of the testator. It follows, then, that when the testator died leaving this will and its codicils, by which his widow was entitled to a legacy for life, of a certain number of shares of stock, she took them just as they were at his death.”

In the case at bar the testatrix bequeathed to the respondent “ my diamond brooch.” At her death there was found among the assets of her estate an article which answered the description of the legacy contained in the 8th clause, and it seems that under the authorities it is of no importance that the brooch, which was the only diamond brooch owned by the testatrix at the time of her death, was not the particular one owned by her at the time her will was made.

Schouler on Wills (3d ed. § 486) states the rule as follows: “ The preferable rule as to after-acquired property stands thus, with the aid of legislation: that descriptions, whether of real or personal estate, or of both together, the subject of gift, refer to and comprise grima facie the property answering to that description at the death of the testator,, but that at all events the intention manifested by the will shall prevail.”

The same rule is declared and adopted in Van Vechten v. Van Veghten (8 Paige, 104).

In Tifft v. Porter (8 N. Y. 516, 521) Judge Johnson said:. “The presumption is stronger that a testator intends some benefit to a legatee than that he intends a benefit only upon, the collateral condition that he shall remain till • death . owner of' the property bequeathed. The motives which ordinarily determine men in selecting legatees are their feelings of regard, and the presumption, of course, is that their feelings continue, and they are looked upon as likely to continue. An intention of benefit being once expressed, to make its taking effect turn upon the contingency of the condition of the testator’s property being unchanged, instead of upon the continuance of the same feelings which in the first instance prompted the selection of the legatee, requires, as it ought, clear language to convey that intention.”

Such have been some of the adjudications in' this State, and while we might cite many other authorities in support of the judgment, we do not deem it necessary to do so, but for the purpose of directing attention to the argument and very apt illustrations of Vice-Chancellor Malins in disposing, of a like question in the English Court of Chancery, we add the further citation of Castle v. Fox (L. R. 11 Eq. 551, 552).

We think the learned trial court adopted the correct rule in construing the 8th clause of the will of Helen Thornton Campbell, and that, therefore, the judgment appealed from should be affirmed.

All concurred.

.Judgment affirmed, with costs.  