Nielsen v. Jepson

LENNON, J.

This is an appeal from a decree of distribution. Appellants claim as beneficiaries under a legacy the subject of which was the sum of twelve thousand dollars invested at interest in certain mortgages. The mortgages in question were paid and canceled before the death of the testator. The lower court held that the legacy was specific and that there was, therefore, a plain ease of ademption. Appellants, on the other hand, contend that the legacy was general or demonstrative, and that they are, consequently, entitled to twelve thousand dollars out of the general assets of the estate.

The disposing clauses of the will read as follows: “As I have recently sold the greater part of my real property and thereby rendered worthless the will made by me two years ago, I do with this instrument hereby declare that upon my death my wife Elise shall have the following and shall have the right to freely dispose of the same: All real property of which I may be possessed. Also: Cash money and bank deposits and all of my personal property, with the exception: Of the sum of $12,000 which is invested at interest as follows: $7,000.00 upon property at Nos. 173-175 Linden street, Yonkers, N. Y.; and $5,000.00 on property at No. 45 Park Hill Ave., Yonkers, N. Y., the interest upon these mortgages amounting together to $12,000.00 shall go to my wife Elise to be used for her benefit as long as she lives: In the event of the said mortgages or any part thereof being paid the sum so paid shall be reinvested in a similar manner. Upon the death of my wife Elise, the above mentioned sum of $12,000.00 shall go to the children of my deceased brother Jacob Jepsen and my deceased sister Christine ...”

[747]

[1]

While it is true that a legacy is presumed to' be general unless it clearly appears to be specific, especially where it is of a pecuniary character, the intent of the testator necessarily controls, and where it appears that his intent was to give a particular thing or a given sum of money, not generally but only from a specified and definitely ascertained source, the court has no choice but to give effect to that intent.

Unquestionably, the legacy under consideration in the instant case would have been specific had its subject been described as the mortgages themselves rather than as a given sum of money.