In re the Judicial Settlement of the Account of Potter

Thompson, J. (dissenting).

That we inay determine the disposition which should be made of certain of the property comprised in decedent’s estate, we must examine the following clauses of her will:

“ I do hereby make two divisions or parts of my last Will and Testament, by one of which I dispose of the property left to me by my late husband, as nearly as possible in compliance with his wishes, and by the other of which I dispose of the property which came to me and which I received from other sources.

“ First Division.

First. By this first division or part of my last Will and Testament, I dispose of the property left to me by my late husband, George Bussell Potter. * * *

“ Sixth. I give, devise and bequeath all the rest, residue and remainder of the estate which came to me from my late husband ■unto my son Edward Walden Potter and unto my daughter Charlotte Potter Whitcher, share and share alike, to them and their heirs forever. * * *

“ Second Division.

“ I do now come to the second division or part of my estate, and I do hereby intend to devise and dispose of all other property of which I may die seized or possessed, of every kind, nature and description whatsoever, having hereby, by the first division of this my last Will and Testament disposed of the property which came to me or which was left to me by my late husband. * * *

Thirteenth. I give, devise and bequeath all the rest, residue and remainder of my estate which is comprehended or embraced under the second division of this my last Will and Testament, unto my daughter, Charlotte Potter Whitcher, of Santa Barbara, California, to her and her heirs forever.

“Fourteenth. I do hereby direct that all State Inheritance or Transfer Taxes, and all Federal Estate Taxes which may be payable by any legatee or devisee, or which may be assessed or levied against any devise or bequest contained in this my last Will and Testament, either in the first or second divisions or parts thereof, shall be paid out of my residuary estate to the end that all legacies, bequests and devises shall be paid to the legatees and devisees free of all charges, taxes and deductions.”

Decedent was the widow of George B. Potter, who died August 2, 1888. Decedent, two children by a former marriage, and two children of his marriage with her, survived him. He left a last will and testament in which he named his wife sole executor. It *137was admitted to probate and letters testamentary were duly issued to decedent. She administered the affairs of the estate, until her accounts were finally settled, and she was discharged February 12, 1892. Among other things, the will contained the following clause:

“ Fifth. The rest and residue of all my estate, real and personal, I give and bequeath to my dear wife, Harriet Fames Potter, her heirs and assigns forever, and I request her to care for and provide for my mother-in-law, Mrs. Sally Hayward, during the life of said Mrs. Sally Hayward. I also request my dear wife to make her will and so divide what I have left her between my children that each may have as near as she can get at it, and taking into consideration what each already has, an equal amount of this world’s goods.”

■ Respondents claim that the provisions of the will by which decedent disposed of the property left to her by her late husband evince a clear testamentary intent that so much of her estate as could be traced to property which came to her from her husband’s estate, whether in the identical form in which she received it, or avails of it, was all “ property left to me by my late husband,” and should, in all the circumstances, pass under the provisions of the first division of her will. Appellant contends that the provisions in question admit of but one construction, namely, that testatrix intended to make a specific disposition of the property she derived from her husband’s estate, which, at her death, should be found in the identical form in which she received it. Upon the trial, testimony was introduced by respondents from which the learned surrogate has found that from the time decedent took office as executrix of her husband’s estate, and continuing down to her death, a period of some forty years, she kept the property which she received from her husband, and its income and avails, separate and apart, and that she kept an account of it, and of property which she received from other sources, and their proceeds, in separate books. This testimony was offered by respondents for the sole purpose of identifying the property. It was not offered upon the subject of the interpretation or meaning of the testamentary provisions of the will.

The learned surrogate has not decided in terms that the provisions of the will are ambiguous, or that they are of such uncertain meaning as to permit the receipt or application of testimony extrinsic the instrument for the purpose of arriving at their meaning. But he has determined that the provisions in question dispose, not only of identical properties passing to decedent by the will of her late husband which she did not dispose of during her life, but also *138of the proceeds of the disposition and reinvestment of the property of his estate, so passing to her, and of the income thereof, of which she was seized or possessed at the time of her death. In this we think the learned surrogate fell into error.

In arriving at the effect to be given these provisions, we cannot depart from the actual domain of the will, unless the meaning of the words used is ambiguous. “ The first and great rule in the exposition of wills to which all other rules must bend is that the intention of the testator expressed in his will shall prevail.” (Marshall, Ch. J., in Smith v. Bell, 6 Pet. 68.)

Where there is no ambiguity, either patent or latent, there is no field open for construction of the will.” (Dwight v. Fancher, 217 App. Div. 377, 380; Matter of Watson, 262 N. Y. 284, 293; Matter of Silsby, 229 id. 396.)

There is no ambiguity here. Gathering decedent’s testamentary intent from the words used, we find that it was her will that if specific property should be found in her estate, which, and as it, came to her from her husband’s estate, it should pass under the first division of her will. In clear and certain terms the provisions-set forth a bequest and devise of specific property. (Crawford v. McCarthy, 159 N. Y. 514; Matter of Matthews, 122 App. Div. 605.) It follows that property of decedent’s estate, which she acquired from the proceeds or reinvestment of proceeds, sales or income of property which came to her from her husband, does not pass under the first division of her will, but its disposition is to be determined by the provisions of the second division. In such case the change of the nature of the property, which decedent received from her husband into other forms, works an ademption of the legacies and devises in the first division of the will. If the subject' of the devise or bequest was not in existence at the time of decedent’s death, there was an extinction or withdrawal of the gift. (Matter of Ireland, 257 N. Y. 155, 158.) In Matter of Brann (219 N. Y. 263) Judge Cardozo says (at p. 268): It was once thought, that ademption was dependent on intention, and ‘ it was, there-, fore, held in old days that when a change was effected by public authority, or without the will of the testator, ademption did not follow. But for many years, that has ceased to be law ’ (Slater v. Slater [L. R. (1 Ch. 1907)], 665, at p. 671). It has ceased to be law in England (Jarman, p. 163; Slater v. Slater, supra). It has ceased to be law in New York (Ametrano v. Downs, 170 N. Y. 388). What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change,”

Appellant also contends that a proper interpretation of the will — particularly of the provisions in which testatrix directs that all *139estate taxes shall be paid from her residuary estate, and that certain upkeep charges in connection with a devise of a house and lot for a term of years, shall be paid out of her estate — requires that said taxes, upkeep charges and also the expenses of administration shall be charged to the residuary funds arising upon the administration of the estate passing under both the first and second divisions of her will, in proportion to the appraised value of the assets disposed of by each division. The learned surrogate has held that these payments are to be made from the residuum arising upon the administration of the estate under the provisions of the second division of her will. In view of our determination that the testamentary provisions of the first division of decedent’s will are specific, there can be only one residuary fund, and that will be as it is erected under the residuary clause contained in the second division of the will. The first division carries only specific transfers. There can b§ no residuum there. In any event the property passing under it being specifically bequeathed and devised, could only be resorted to for the payment of debts and administration expenses in case the property not specifically devised or bequeathed should be insufficient for that purpose. (Blood v. Kane, 130 N. Y. 514, 517; Toch v. Toch, 81 Hun, 410, 414,) The second division, however, contains general and residuary directions. This is the residuary clause of the entire will. (Beekman v. Bonsor, 23 N. Y. 298, 312; Thompson on Construction of Wills [1928 ed.], § 341.)

In the respects indicated, the decree should be reversed; in all other respects, it should be affirmed, and the matter remitted to the Surrogate’s Court, to proceed in accordance with this opinion. Neither party to this appeal having been wholly successful, costs should not be awarded.

Crosby, J., concurs.

Decree in so far as appealed from, should, as to the construction of the will, be modified on the law to construe the will in accordance with the opinion, and as so modified the decree, as to the construction of the will, should be affirmed; and as to the accounting, the decree should be reversed on the law and the matter remitted to the Surrogate’s Court with directions to proceed in accordance with the opinion, with costs to each party appearing by separate attorney and filing brief upon this appeal, payable out of the estate.