In re the Judicial Settlement of the Account of Smith

Finch, J. (dissenting):

It would seem as if the gift here falls within the well-settled rule of law that where a bequest is made of personal property, using the words “ give and bequeath ” or like words importing an unconditional bequest, it requires a clearly expressed intention in unambiguous language to cut it down. (Illensworth v. Illensworth, 110 App. Div. 399; Williams v. Boul, 101 id. 593.) No such clearly expressed intention appears in the case at bar in the paragraph under construction or in the other parts of the will. In fact, the language of the residuary clause including Theodore Ward Fellows as a residuary legatee seems clearly to show an intention to make an unconditional gift to him of $25,000 by clause 5 of the will.

Decree affirmed, with costs to all parties appearing upon this appeal payable out of the trust fund.