Gardner v. Snow

BARNARD, P. J.

This is an appeal from a judgment based upon the construction of one provision of the will of James L. Ingram. The will was executed on December 4, 1946, and the disputed provision reads:

“Fourth: That certain Promissory Note representing the balance due from the sale of the Annestone Apartments, which said note is secured by a Deed of Trust, I give, devise and bequeath unto my said sister, Ivy Ingram Snow she to receive all of the payments of principal and interest thereon during her lifetime.

“Upon the death of my said sister, I give, devise and bequeath the remainder, if any, of said Note and Deed of Trust, in equal shares, to my two (2) nieces, Marguerite Gardner and Anna Davidson, or to the survivor of them.”

This was a note for $70,000 dated June 26, 1946. It was secured by a deed of trust on the apartment house, in which the defendant title company was named as trustee. The note provided that interest at 6 per cent should be paid monthly until $10,000 was paid on the principal; that such a payment should be made after January 15, 1947, and before July 1, 1947, whereupon the monthly interest payments should be reduced to 4 per cent; that another $10,000 should be paid after January 1, 1948, and before July 1, 1948; and that beginning August 1, 1948, the principal and interest should be paid in monthly installments of $500 until July 1, 1951, at which time the entire balance should be paid. The note contained no provision giving the maker the right to make additional payments in advance of the due dates, but it contained a provision that if any installment was not paid when due the entire amount should become immediately due at the option of the holder.

Mr. Ingram died in 1947. During the probate of his will, on an application for partial distribution, the court found that this note was to be distributed to the sister, Mrs. Snow, and ordered it distributed to her “in accordance with the Last Will and Testament of said decedent and with the findings hereinbefore set forth.” Pursuant to that decree the note was delivered to Mrs. Snow on August 12, 1948, and her

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receipt recited that she was “to receive and hold the said note in conformity with the provisions of” the will. Mrs. Snow received the $500 monthly payments on the note until October, 1950. During that month she received $41,535 in full payment of the note, including three months’ advance interest. This full payment resulted from the fact that the makers of the note had resold the apartment house, and had requested a reconveyance under the trust deed in order to clear their title. The title company ■ reconveyed the property at the request of Mrs. Snow. She died on March 7, 1951, a few months before final payment would have been due, under the terms of the note.