Ely v. Megie

• Decision Date: 03 October 1916
• Citation: 113 N.E. 800,219 N.Y. 112
• Parties: ELY v. MEGIE et al.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 112

113 N.E. 800

ELY

v.MEGIE et al.

Court of Appeals of New York.

Oct. 3, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Cheever N. Ely, as an executor of the will of Smith Ely, deceased, against William H. Megie and others, for the construction of the will. From a judgment of the Appellate Division (163 App. Div. 320,148 N. Y. Supp. 691), affirming judgment of the Special Term, construing he will, Edwin A. Ely and certain other defendants appeal. Affirmed.

Frederick E. Mygatt, Tompkins McIlvaine, and Francis Smyth, all of New York City, for appellants.

Everett J. Esselstyn, Carrington G. Arnold, and Wm. A. W. Stewart, all of New York City, for respondents.

HOGAN, J.

Smith Ely died at the city of New York July 1, 1911, aged 86 years. He was a bachelor and left him surviving no ancestors or descendants, no descendants of any predeceased brother or sister, and no brothers or sisters, except William H. and Edwin A Ely, brothers, and Maria S. Vanderpoel, a sister. The plaintiff, one of the executors of the last will of Smith Ely, sought in this action a construction of the will and codicil of the testator, a determination of the identity of the legatees thereunder, the validity of bequests contained therein and an adjudication whether the legacies given by the said instruments are a charge upon the real estate of which the testator died seised which was not specifically devised by him.

The will in question was executed March 1, 1906. By the first paragraph of the same the testator gave to 11 individuals named in separate subdivisions thereof bequests in the aggregate $12,000, to 5 several churches and chapels bequests in a total sum of $27,000, to the Ely Cemetery $5,000, and by the eighteenth subdivision of said paragraph to the United Charities $12,000 in trust for charitable purposes enumerated. To his sister he gave his watches, jewelry, objects of art, etc. By paragraph 2 the testator gave to his executors $200,000 in trust, to be divided into four equal portions, to invest and keep one such portion invested for the benefit of each of his brothers, Ambrose K., William H., and Edwin A., and one such portion for the benefit of his sister, Maria L. Vanderpoel, the income of each share to be paid to the beneficiary during his or her natural life, and upon the death of Ambrose K. and Edwin A. to pay over and deliver the principal of the trust fund held for their respective benefits to the American Sunday School Union; upon the death of William H. to subdivide the principal of the trust fund held for his benefit into two smaller shares, to keep the same invested and pay over the income from one share to each of two nieces during life and upon the death of each of said nieces to pay over and deliver the principal of the trust fund held for her benefit to her surviving issue per stirpes; upon the death of his sister the income from the trust fund held for her benefit was to be paid to her son during his life, and upon his death the principal to be paid to his issue, but, if he should not leave issue, to the New York City Mission & Tract Society. The third paragraph of the will directed the executors named in the instrument to pay out of the residuary estate all transfer and inheritance taxes. By paragraph 4 the rest, residue, and remainder of testator's property, real and personal, was given to his executors in trust, to invest and pay the income arising therefrom to 36 certain persons therein named during the lives of two grandnieces, and the survivor of them, etc., the principal to be paid over to the surviving beneficiaries in equal shares. As this clause was later revoked by a codicil, it is unnecessary to dwell further upon the same. By paragraph 5 of the will the testator appointed four individuals as executors of his will, gave to them power, in their discretion, to lease or sell all or any part of the real property of which he should die seised, authority to appoint substitutes in the event of a vacancy, and released them from giving any bond or security.

Ambrose K. Ely, a brother of the testator, named in the second paragraph of the will, predeceased the testator on the 6th day of February, 1907, leaving an estate of about $6,000,000 and a last will in and by which he left to Smith Ely, the testator, and to William H. and Edwin A. Ely, his brothers and Maria L. Vanderpoel, a sister, property of the value of more than $1,000,000 each. May 27, 1907, the testator executed a deed of trust to the United States Trust Company of New list of securities turned over to the trust company under said deed, aggregating in value pany under said deed, aggregating in value $392,588.22. Under the terms of the deed of trust the trustee was to invest and reinvest the securities, collect and receive the income therefrom, pay to the testator quarterly the income during his life or so long as he should direct, and upon his death or such earlier disposition pay the income in equal shares to the persons named therein and the survivors of them during the lives of two grandnieces of the testator and the survivor of them, the principal to be paid to 41 individuals named in the trust deed.

June 11, 1909, Mr. Ely executed a codicil to his will of March 1, 1906, in and by which he revoked the bequest made by the eighteenth subdivision of the first paragraph thereof in favor of the United Charities; also the provisions contained in the fourth paragraph of the will disposing of his residuary estate. By the second paragraph of the codicil testator devised to his brothers and sister real estate described as No. 47 West Fifty-Seventh street, New York city, the Ely homestead farm at Livingston, N. J., and all other real property of which he might die seised in the town of Livingston, N. J. In the third paragraph testator made specific bequests to 23 several individuals, aggregating $93,000, to four several churches $12,000, and to the Morris County Children's Home, Parsippany, N. J., $18,000. By the fourth paragraph of the codicil the rest, residue, and remainder of his property, both real and personal, was devised and bequeathed to 8 several charitable associations to be divided equally between them. Three of the associations named therein were the New York City Mission & Tract Society of the City of New York, the New York Society for Improving the Condition of the Poor of the City of New York, and the Children's Aid Society of the City of New York, the two first named associations being appellants in this case.

June 23, 1911, the testator executed a second codicil to his will. Therein he again revoked the bequest in the eighteenth subdivision of the first paragraph of his will, also paragraph 4 of his will. By the second paragraph of the codicil he revoked the appointment of the four executors named in paragraph 5 of his will and in their place and stead nominated and appointed Cheever N. Ely, George P. Vanderpoel, and Ambrose E. Vanderpoel executors, and otherwise ratified all other provisions of the fifth paragraph of his will, which gave to the executors power to lease and sell real estate, appoint substitutes, and act without security, etc. By the third paragraph he again devised to his brothers and sister the real estate theretofore devised to them in the first codicil. In the fourth paragraph he created a trust of $20,000, the income to be paid to Adelaide V. Ely Goddard, and upon her death the principal to become a part of his residuary estate. The fifth paragraph of the codicil contained 49 subdivisions, and thereunder he gave to 40 individuals in 40 subdivisions of said paragraph bequests aggregating $179,000. Amongst said beneflciaries were some named in the will, who under this paragraph received additional bequests. By subdivisions 41 to 49 of said paragraph he gave to churches, nurseries, and charitable institutions the sum of $188,000. By the sixth paragraph of the codicil he gave and bequeathed to 3 several hospitals $50,000 each. By the eighth paragraph of the codicil he ratified and affirmed his will and testament, and revoked and annulled any and all codicils to the said will, and declared this to be the only codicil to his last will and testament. The seventh paragraph of the codicil provided as follows:

‘Seventh. After the payment of all other legacies and of the transfer taxes which may be lawfully imposed upon them, as in my will provided, I give and bequeath to the Children's Aid Society of the City of New York, the sum of one hundred thousand dollars; to the New York Society for Improving the Condition of the Poor, of the City of New York, the sum of one hundred thousand dollars; to the Board of Church Erection of the Presbyterian Church in the United States, the sum of one hundred thousand dollars; and to the New York City Mission and Tract Society, of the City of New York, the sum of one hundred thousand dollars. Provided that the said several sums of one hundred thousand dollars shall each constitute a special endowment fund to be forever called and known as the Ambrose K. Ely Memorial. And provided further, that if my personal estate should be insufficient to fully pay all of the legacies enumerated in my will and the codicil thereto, together with the transfer taxes which may be imposed upon them, I direct that the legacies to the four corporations last above mentioned shall abate pro rata or in toto, as the necessities of the case may require, before the abatement of the legacies previously provided for in my said will and the codicil thereto.’

The trial justice found as matter of fact that the part of the clause above quoted commencing with ‘And providedfurther’ to the end thereof was given by the testator to the draftsman of the codicil personally, and was gone over by the testator with the draftsman on each of four separate occasions, and testator being asked if it was all right said it was. An appraisal of the property of the testator made...