McCorn v. McCorn

Citation100 N.Y. 511,3 N.E. 480
PartiesMcCORN v. McCORN and others.
Decision Date24 November 1885
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

M. N. Tompkins, for appellants, John McCorn and others.

James A. Christie, for respondent, Sarah McCorn.

FINCH, J.

Whether a legacy is charged upon the real estate of the decedent is always a question of the testator's intention. The language of the will is the basis of the inquiry; but extrinsic circumstances which aid in the interpretation of that language, and help to disclose the actual intention, may also be considered. Le Fevre v. Toole, 84 N. Y. 95;Hoyt v. Hoyt, 85 N. Y. 142;Scott v. Stebbins, 91 N. Y. 605. In this case the testator, by a will exceedingly simple and brief, bequeathed to his wife $1,000 and certain specific articles; to his son Moses the sum of $4,000; and then added: ‘I devise that the rest of the property shall be divided equally between Mr. Moses McCorn, Jr., Mr. John McCorn, Mrs. Eliza Tompkins, and Mrs. Mary Jane Alexander.’ These four were children of the decedent. This will was made but one day before his death, so no change in the condition of his estate can be supposed as occurring in the interval. His personal estate was insufficient even to pay his funeral expenses, and the two legacies to the widow and son were mere mockeries unless meant to be a charge upon the real estate. The testator must have known that he had no personal estate with which to pay the smallest portion of his bequests; and unless he meant to charge them upon the land, we must impute to him the deliberate and conscious intention of making bequests to his wife and son which he knew could never be paid. The case is not one in which there proves to be a small and unexpected lack of personalty to pay legacies, and so in which the testator might be assumed to have honestly and reasonably supposed his personal assets sufficient. In such an event the foundation of an inference that the real estate was meant to be charged would be taken away, and the deficiency would have no significance. But the situation is such that all possibility of innocent mistake is removed, and the facts drive us to the alternative of believing that the testator, in making his last will, under the solemnity of approaching death, indulged in bequests known to be useless and vain, or meant that they should be paid from the only possible source. No reasonable intelligence can hesitate to draw the latter inference. But the final language of the will further indicates the intention. There is a residuary clause which blends the personal and real estate by the phrase ‘the rest of the property.’ There could be no ‘residue’ on the theory that nothing had been given to the wife and Moses, and the term would be inapplicable to what was known to be a devise of the whole estate. The use of the term implied an understanding of the testator that something had been given out of and taken from his property, so that there was left a remainder or residue of the whole property. Each of these circumstances, in our consideration of other cases, has had a place in the reasons given for inferring an intention to charge legacies upon the land. It is not needed to say whether one alone would be...

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36 cases
  • In re Bernheimer's Estate
    • United States
    • Missouri Supreme Court
    • December 6, 1943
    ... ... insincere, dishonest bequest. Clotilde v. Lutz, 157 ... Mo. 439, 57 S.W. 1018; Hoyt v. Hoyt, 85 N.Y. 142; ... McCorn v. McCorn, 100 N.Y. 511; Duncan v ... Wallace, 114 Ind. 169, 16 N.E. 137; Gilmer v ... Gilmer, 151 Miss. 33, 117 So. 830; In re ... ...
  • O'Day v. O'Day
    • United States
    • Missouri Supreme Court
    • January 31, 1906
    ... ... distributively. Lupton v. Lupton, 2 Johns. Ch. 625; ... Riley's Appeal, 34 Pa. 391; Brill v. Wright, 112 ... N.Y. 129; McCorn v. McCorn, 100 N.Y. 511; Briggs ... v. Carroll, 117 N.Y. 289; Matter of Rochester, ... 110 N.Y. 159. (3) The same doctrines apply with greater ... ...
  • In re Estate of Temple
    • United States
    • Missouri Court of Appeals
    • December 5, 1922
    ... ... Lutz, 157 Mo. 439; Brant's Will, 40 Mo. 266; 2 ... Woerner's Am. Law of Adminis. (2 Ed.), sec. 491; Hoyt ... v. Hoyt, 85 N.Y. 147; McCorn v. McCorn, 100 ... N.Y. 511; Duncan v. Wallace, 114 Ind. 171; ... Davison v. Coon, 125 Ind. 497, 9 L.R.A. 584 and ...          ALLEN, ... ...
  • Ely v. Megie
    • United States
    • New York Court of Appeals Court of Appeals
    • October 3, 1916
    ... ... McCorn v. McCorn, 100 N. Y. 511, 513,3 N. E. 480, and cases cited. The same principle is applied in Bevan v. Cooper, 72 N. Y. 317;Brill v. Wright, 112 N. Y ... ...
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