Meyer v. Cahen

• Decision Date: 27 November 1888
• Parties: MEYER v. CAHEN et al.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 270

18 N.E. 852

MEYER

v.CAHEN et al.¹

Court of Appeals of New York.

November 27, 1888.

Appeal from supreme court, general term, First department.

Action by Charlotte Meyer, individually and as executrix, etc., against James P. Cahen and others, for the construction of the will of Julius R. Meyer. The judgment of the special term was affirmed by the general term, and defendants appeal.

E. C. Boardman, for appellants.

M. L. Townsend, for respondent.

PECKHAM, J.

The defendants herein appeal from a judgment of the general term affirming that of the special term construing the will of Julius R. Meyer, who died on the 20th of May, 1884. The defendants Cahen were appointed executors, and the other defendants are legatees under the will. By the second paragraph of his will the testator gave to his wife, the plaintiff, his house and lot in West Fifty-Third street, New York, together with certain books, plate, and other personal property, which were to be received in lieu of dower. By the third paragraph he bequeathed to Paula Friedheim the sum of $1,000, in trust, to be held by the executors of his will until she arrived at the age of 21years, or married. At the time of the execution of the will, and at the time of the death of the testator, there was a mortgage for $12,000, executed in 1869 by the testator and a former wife, upon the house and lot in Fifty-Third street. On the 10th of September, 1885, this mortgage was foreclosed, and the premises sold, resulting in a deficiency of $2,184, for which sum judgment against the estate was perfected. The value of the house and lot was found to have been $12,000 at the time of the death of the testator, and, he having by his will given the premises to his widow, she claims that she should be paid that amount from the estate. The defendants object to this construction, and claim that she took simply the equity of redemption in the premises. The courts below have decided this question in favor of the plaintiff. In this we think they erred. We think the case comes clearly under 1 Rev. St. p. 749, § 4, which reads as follows: ‘Whenever any real estate subject to a mortgage executed by an ancestor or testator shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own personal property, without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator that such mortgage be otherwise paid.’ We can give no force to the arguments urged on the side of the widow, as against the plain commands of this statute. We do not see that the provisions of 1 Rev. St. p. 740, § 4, in regard to the right of a widow to be endowed out of lands mortgaged before her marriage as against all but the mortgagee or those claiming under him, throw any light on the case, or take it out of the application of the above-quoted section of the statute; nor do we think the argument for the widow is strengthened by the claim that she, having accepted the property in lieu of dower, is entitled to special and favorable consideration in all questions, the same as if she was an actual purchaser for a valuable consideration. That does not alter the fact that she takes by virtue of the devise in the will of the testator, and it does not take the case out of the operation of the statute in question, which is perfectly plain, unambiguous, and effective, and covers at all points the case of the widow herein. The fact that the testator in the first clause of his will directed the payment of his debts as soon after his decease as conveniently could be done, we do not regard as material. Such a clause is usually a purely formal one, and works no change in the disposition of the testator's property. The statute provides that all debts and funeral expenses shall be paid first, and a direction in the will to do what the law requires to be done can throw no material light upon the meaning of the will. We think the contention of the defendants is correct, and that the widow should not be allowed the value of the real estate, as claimed by her.

One other question arises under this will. The testator in the fourth clause provided that all the rest, residue, and remainder of his property, real, personal, and mixed, and wheresoever situated, of every character and nature whatsoever, should be converted into money; and he gave, devised, and bequeathed unto his executors all of such property in trust for the purposes mentioned in his will. At the time of his decease he had in the firm of J. R. Meyer & Co., of New York, $20,000, and he provided in his will that it should remain there at 6 per cent. interest, if his partner should consent to it, and that interest was to go to his wife as long as she remained unmarried. The balance of his estate he directed to be invested by his executors in interest-bearing securities, the interest to be paid to his wife as long as she remained unmarried. He then provided for his issue living at the time of his death, but, as he left none, it is not necessary to refer to that provision. By the fifth clause he provided as follows: ‘In the...