Carley v. Harper

• Decision Date: 21 November 1916
• Citation: 219 N.Y. 295,114 N.E. 351
• Parties: CARLEY v. HARPER et al.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 295

114 N.E. 351

CARLEY

v.HARPER et al.

Court of Appeals of New York.

Nov. 21, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Eldred A. Carley, executor of Augusta M. Harper, deceased, against Elizabeth F. Harper and others. From a judgment of the Appellate Division (166 App. Div. 473,151 N. Y. Supp. 1056), modifying, and, as modified, affirming, a judgment of the Special Term, construing the will of deceased, defendants Florence Skillin Cloyd and Simeon D. Skillin, residuary legatees, appeal. Affirmed.

Willard Bartlett, C. J., and Hiscock and Collin, JJ., dissenting.

Percival H. Gregory, of New York City, for appellants.

Augustus H. Skillin, of New York City, for respondents Dallas H. Skillin and others.

James W. Treadwell, of New York City, for respondents Elizabeth F. Harper and others.

Daniel Whitford, of New York City, for respondents James Harper and others.

George L. Day, for respondents Ella Virginia Miller and others.

POUND, J.

Testatrix was a widow who had, in 1896, received a considerable amount of property from her husband's estate. She made her will in July, 1900. She died in December, 1911. The general legacies given by her will aggregated $132,200. They are not specifically charged upon the real estate. She left personal property, exclusive of specific bequests, amounting to less than $82,000. She also left real estate not specifically devised. In 1903 she had expended $29,500 in the purchase of real estate specifically devised. The trial court found and the Appellate Division has not disturbed the finding, that ‘when she made her will, the testatrix possessed, and knew or believed she possessed, exclusive of personal property specifically bequeathed by her will,’ the sum of $97,589.77. Upon the finding that ‘testatrix intended and did charge the general pecuniary legacies mentioned in her will upon her real estate not specifically devised,’ the Appellate Division was not unanimous in affirming the judgment of the trial court. And the first question to be considered here is whether such finding is based on sufficient evidence.

[1][2] The principles to be applied in determining whether a legacy is charged by implication upon the real estate of a testator have been frequented stated, and were recently considered in this court in Ely v. Megie, 219 N. Y. 112, 113 N. E. 800. The intention of the testator is the guide. It is determined from the language of the will, read in the light of extrinsic circumstances. We are not to lose of the rules which discriminate between wills of real and personal property. We are not to ‘act upon a conjecture, however plausible.’ Denio, C. J., in Lynes v. Townsend, 33 N. Y. 558, 569. If the intent is not expressed, it must be fairly and satisfactorily inferred. Lupton v. Lupton, 2 Johns. Ch. 614. The relation of the beneficiaries of the will to the testator is not to be overlooked, and the presumption favors children rather than strangers. Scott v. Stebbins, 91 N. Y. 605. The condition of testator's estate as he knew or believed it to be at the time he made his will may reveal a deficiency of personal property so great and so obvious as to preclude any possible inference other than that he intended to charge the legacies upon the real estate (Briggs v. Carroll, 117 N. Y. 288, 292,22 N. E. 1054), but an intention to charge the land will not be inferred from such disparity, even though serious, if the testator might have been unconscious of its existence, mistaken in judgment as to the value of his personal property, or in reasonable expectation of increasing his personal estate before his death. Briggs v. Carroll, supra. The presence of a power of sale of real estate otherwise unnecessary may help the legatees (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354;Dunham v. Deraismes, 165 N. Y. 65, 58 N. E. 789), as may the blending of real and personal property in the residuary clause (Scott v. Stebbins, 91 N. Y. 605, 613;McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480;Brill v. Wright, 112 N. Y. 129, 19 N. E. 628,8 Am. St. Rep. 717; 2 Jarman on Wills. 1413). The direction to the executors to pay the transfer tax on the legacies from the residue is a circumstance suggesting that the legacies should be paid in full. Subsequent reduction of personal property and increase of real estate has a bearing on the question. Scott v. Stebbins, supra. But these are circumstances merely, and each will is to be considered as a harmonious whole, and not as a combination of ill-fitting fragments (Crumpe v. Crumpe. [1900] A. C. 127, 130, 132), and if the will is drawn by a competent lawyer, the failure expressly to charge the legacies upon the real estate should be, but perhaps is not, as significant a circumstance as any.

In the case before us we have, as evidence of intention of the testatrix at the time of making the will, many legacies to relatives and strangers, aggregating $132,200, to be paid, together with debts and expenses of administration, out of a fund which was about $35,000 less than the amount of the legacies. We have also the incidents of a power of sale, a mingling of real and personal property in a residuary clause, and a direction for the payment of the transfer tax out of the residue, all of which harmonize with an intention to charge the real estate.

In the Ely Case Judge Hogan says the suggestion is incredible that testator should, at the end of his days, with full knowledge of his affairs, intend to leave a wholly inadequate fund from which to pay his legatees and to die intestate as to his real estate. The fund here is not so inadequate as to carry that suggestion. Testatrix owed no debts. She may have expected to increase her estate. The personal property is not disposed of in such fashion that unless the legacies are charged on the real estate, the natural objects of testatrix's bounty receive nothing, or less than equity suggests as their share. It would not be ‘a mockery and an absurdity’ to impute to testatrix an intention that the legacies should not be paid if the personal estate was insufficient. Miller, J., in Scott v. Stebbins, supra. At the same time we cannot give effect to the entire plan and purpose of the will without charging the legacies upon the real estate not specifically devised. Whether or not when she executed it she expected that such real estate would be sold to pay legacies we cannot say, but we can say that everything in the will is consistent with such an intention, and that the power of sale and the blending of real and personal property in the residuary clause compel the conclusion that she intended to mingle the personal and the real, not specifically devised, in a common fund. While we should not vex established rules to sustain mere conjectures, the artificial distinctions between wills of real and personal property should not be magnified when the circumstances surrounding the execution of the will permit the conclusion from the language thereof that the testatrix intended that the legacies should be paid (Bevan v. Cooper, 72 N. Y. 317), and that they were not meant to be nugatory or unavailing (Taylor v. Dodd, 58 N. Y. 335). The...