Morton v. Woodbury

• Decision Date: 08 June 1897
• Citation: 47 N.E. 283,153 N.Y. 243
• Parties: MORTON v. WOODBURY.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 243

47 N.E. 283

MORTON

v.WOODBURY.

Court of Appeals of New York.

June 8, 1897.

Appeal from supreme court, general term, First department.

Bill by Levi P. Morton, as sole surviving executor of Lizzie H. Perkins, against Ellen C. Woodbury and Zachariah Jellison and others, executors of Thomas Harward. From a judgment of the general term of the supreme court modifying a final judgment of the special term, and affirming it as modified, the executors of Thomas Harward appeal. Affirmed.

The action was brought by the executors of Lizzie H. Perkins for the construction of her will. The will was as follows: ‘I, Lizzie H. Perkins, now in the city of Paris, do now make and declare this as my last will and testament. After the payment of all my just debts and funeral expenses I give and bequeath the sum of five hundred dollars to Greenwood Cemetery, to be invested by it and its successors, the income therefrom to be applied to the care and preservation of the burial lot now owned by me in said cemetery. Second. I give and bequeath to my executors, hereinafter named, the sum of three thousand dollars in trust to invest during the lifetime of my father, and after his death I direct my executors with said three thousand dollars to purchase a suitable lot in the Bath burying ground in state of Maine, and to cause the remains of my mother and brothers to be removed from the tomb which I own in the city of Bath, and to be placed in the ground in the said burying ground, and to cause the proper memorial stones to be erected. [Third.] I give and bequeath to the persons hereinafter named, money and articles specified below: To Mary Perkins, of Paris, France, the sum of six thousand dollars. To Martie Richardson, of Bath, Maine, the sum of four thousand dollars. To Lottie Berard, three thousand dollars. To Clara Bocher, three thousand dollars. To Florence Mattews, five thousand dollars and my lot in Newport. Also my harp, now in Lincon Warehouse. To Lizzie H. Pennell, of Brunswick, Maine, three thousand dollars. To Jennie Ferrin, daughter of Charles B. Ferrin, three thousand dollars. To Dr. Labadie Lagrave, for the poor he may so aid, one thousand dollars. To the Bath Soldiers' Home, in Bath, two thousand dollars. To the poor of Bath, one thousand dollars. To Ellen Woodbury, my lot in Washington, my diamonds and rubies. I direct every family portrait burned. Also all papers so marked. To John H. Wyman, my pictures and books, also a silver pitcher of Philadelphia make. To L. P. Morton, a box of old Sevres plates, now in a black trunk in Lincon Warehouse. To Louise Barlow, my lace. To the American Hospital, if erected in Paris, that strangers, women, may have a place to go, I give four thousand dollars. Anything now remaining from the old Bath house I give to Lizzie Pennell. A trunk with linen at Hottinguer to May Perkins. A trunk with underclothes at Hottinguer to May perkins. Two boxes containing furniture at Hottinguer to May Perkins. To Clara Bocher all things given me by Madame De Rothschild. A gray French trunk, the last sent from hotel, I give to Florence Matthews. [Fourth.] I appoint Ellen C. Woodbury my legatee and give to her all not before specified in this and request her to give as I may direct or sell from what remains. [Fifth.] I appoint John H. Wyman, L. P. Morton, John J. Richardson executors, and direct that after the payment of my debts and sums above named that they shall sell bonds, stocks and other property and give the money thus collected to hospitals and homes for women in Washington and New York. [Sixth.] My executors are not to give bonds. And it is my request that all I have here requested be as private as possible, as my affairs regard no one. Lizzie H. Perkins.’ The foregoing will was executed in the city of Paris on the 6th day of January, 1890. The testatrix died at that place the 23d day of September, 1891, although she was at the time a resident of the city of New York. Her will was admitted to probate by a surrogate's court held in and for the city and county of New York on the 22d day of September, 1892. The testatrix left, her surviving, as her only heir at law and next of kin, her father, Thomas Harward, who at the time of her death was 103 years of age, and possessed of nearly as much property as the testatrix, as appears from the provisions of his will, which is made a part of the record. He died shortly after the death of the testatrix, and the appellants are the executors of his last will and testament. The testatrix's mother died previous to the making of the will in question, and at the time it was made her father had married again, and was living with his second wife. Inclosed in an envelope with the will was a paper which was as follows: ‘Nell, sell what you can of my things and give the money to the poor. Give of my paintings to Mrs. Dana, something. Give my clothing to Lizzie Pennell and my guitar. To Martie Richardson the small set of silver with kettle, the large Sevres to be sold, money to be given to the poor. Sell the contents of the two large boxes at Lincon, money to be given to the poor. Give the McKever girls some of my paintings. I am too wild Nell with the thought of death to do what I would. As I think of anything I shall put it down. Try to do as I would wish. Give Mrs. Dana my Indian shawls. Florence Mattews the small silver kettle and little cups Tea pot. Burn every paper and family picture.’ The testatrix spent much of her time in the city of Washington with the respondent, who resided there and was her most intimate friend; their friendship having begun when they were girls at school, and continued until the death of the former. Her estate consisted of cash, $2,688.14; furniture, clothes, ornaments, and jewels valued at $3,478.10; bonds and stocks valued at $123,624; a lot in Brooklyn valued at $10,000; and a lot in Newport, devised to Florence Matthews, of the value of $6,000; a lot in Washington, devised to the respondent, valued at $2,600. Thus the value of her whole estate was $148,390.24. The specific legacies of money given by the will amounted to $38,500; the land specifically devised, to $8,600; while the things which were denominated on the argument as ‘personal belongings' were only of the value of $3,478.10. The case was tried at special term, where it was held that all the devises and bequests contained in the will were valid and effectual, except the specific bequest of $1,000 to the poor of Bath, which was held void for uncertainty; the bequest to the American Hospital, if erected in Paris, which was held void, because no such institution was in existence at the time of the testatrix's death; and ‘the residuary devise and bequest to Ellen C. Woodbury, and the direction to the executors to sell property, and give the money to hospitals and homes for women in Washington and New York,’ which were held void for ‘want of intrinsic certainty and extrinsic application.’ The special term also held that the residuum of the estate, not specifically and validly devised and bequeathed, passed by intestacy to the executors and heirs of Thomas Harward, and judgment was directed accordingly. Ellen C. Woodbury was the only party who appealed from that decision. On appeal to the general term, that court modified and practically reversed the decision of the special term, so far as it adjudged that the provision of the will appointing Ellen C. Woodbury as the testatrix's legatee was void for uncertainty.

O'Brien and Vann, JJ., dissenting.

Daniel G. Rollins and George G. De Witt, for appellants.

for Appellants.

William G. Choate, for respondent Ellen C. Woodbury.

William M. Grinnell, for respondent Morton.

MARTIN, J. (after stating the facts).

This court is called upon to construe the will of the testatrix, and, if possible, under existing rules of law, to ascertain her intent, and thereby determine the devolution of her estate. The will was holographic, written by the testatrix when in a foreign land, distant from home and friends, and it is manifest that she was unaided in its preparation by legal counsel or professional advice. Under these circumstances, that we find it to have been inartificially and unskillfully written, rendering the intent and meaning of the testatrix somewhat obscure and uncertain, excites no surprise. Yet its uncertainty of expression and obscurity of meaning in no degree absolve this court from the duty of interpreting it, unless it is so vague and indefinite as to render the purpose and meaning of the testatrix incomprehensible, as it is only when all the established rules of law for the construction of wills have been applied in vain that the court may reject the instrument as impossible of construction. Hence it is our duty to carefully examine and diligently study the provisions of this will, apply to it the proper rules of construction, and, so far as possible, interpret it in accordance with the intent and purpose of the testatrix.

The parties having acquiesced in the decisions of the courts below upon most of the questions originally submitted, the only controversy between them at present is whether the provisions of the fourth article of the testatrix's will, whereby she appointed the respondent her legatee, are sufficient to constitute her the general residuary legatee of her estate. The language of that provision is, ‘I appoint Ellen C. Woodbury my legatee, and give to her all not before specified in this and request her to give as I may direct or sell from what remains.’ It is obvious that the word ‘all’ refers to her property or estate, and that the word ‘this' relates to her will. Therefore, if considered alone, without reference to the other provisions, it is plain that it should be interpreted as though it read, ‘I appoint Ellen C. Woodbury my legatee, and give her all my property or estate not before specified in this will.’ The words, ‘I appoint Ellen C. Woodbury my legatee, and give to her all not...