Monroe County NyArchives Court.....Humphrey, George Vs. Mary Robinson 1889
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Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.

GEORGE H. HUMPHREY, as Executor of the Last Will and Testament of BENJAMIN P. 
ROBINSON, Deceased, Respondent, v. MARY A. ROBINSON, Respondent, and ASA F. 
ROBINSON and Others, Appellants.

Legacy — when specific, and not pecuniary or demonstrative.

The plaintiff, as executor of the will of Benjamin P. Robinson, deceased, 
brought this action to secure a judicial construction of a clause of the will, 
which read as follows:

"First. I bequeath to my beloved wife, Mary A. Robinson, the sum of fifty 
thousand dollars ($50,000), the same to be paid to her by my executors, 
hereinafter named, immediately after my decease, in manner following, that is to 
say, by the transfer to her of my stock in the New York Central and Hudson River 
Railroad, at its par value, as far as the same will go for that purpose, and the 
residue in cash; and I also give and bequeath to her all of my household 
furniture and pictures, also a bond and mortgage, bearing date April 1, 1881, 
executed to me by Rufus A. Sibley and Alexander M. Lindsley to secure the 
payment of thirty thousand dollars, which said legacies are to be received and 
accepted by my said wife in full lieu, discharge and satisfaction of her dower 
interest, and of any and every other claim that she may have in or to my real 
estate; and I do hereby direct my executors that in the event there should be, 
for any reason, any delay in paying her the amount hereby bequeathed, to pay to 
her for her support and maintenance the sum of two hundred and fifty dollars 
monthly until said legacies, shall be paid to her as aforesaid."

Before the death of the testator the thirty thousand dollar bond and mortgage, 
mentioned and described in the first item of the will and therein bequeathed to 
his wife, was fully paid to him and was by him discharged, and the testator had 
disposed of all his stock in the New York Central and Hudson River Railroad
Company. At the time of his death his personal estate was of the value of 
$112,605, as estimated by the referee before whom this action was tried, 
including the furniture and pictures, which were of the value of $2,000. 

Held, that the meaning and effect of the language in the first clause of the 
will was to give and bequeath the bond and mortgage specifically to the legatee, 
and that if the testator had remained the owner of the same, up to the time of 
his death, the legatee could, as a matter of right, have demanded from the 
executor the transfer of the mortgage to herself, whatever might have been its 
value at that time.

That the court was unable to find in the remaining provisions of the first 
clause any provision or direction that fairly indicated an intention on the part 
of the testator to change or alter the effect or meaning of the words used in 
making the specific bequest of the bond and mortgage.

Appeal from a judgment, entered upon the report of a referee, in the office of 
the clerk of Monroe county, on the 29th day of August, 1888.

The plaintiff is the executor of the last will and testament of Benjamin P. 
Robinson, and this action is prosecuted for the purpose of securing a judicial 
construction of the same. The defendant, Mary A. Robinson, is the widow of the 
testator and a legatee named in the will, and the other defendants, who are the 
appellants, are the residuary legatees. The clause of the will as to the meaning 
of which the plaintiff entertained doubts is the first, and is as follows:

"First. I give and bequeath to my beloved wife, Mary A. Robinson, the sum of 
fifty thousand dollars ($50,000), the same to be paid to her by my executors 
hereinafter named, immediately after my decease, in manner following, that is to 
say, by the transfer to her of my stock in the New York Central and Hudson River 
Railroad Company, at its par value, as far as the same will go for that, 
purpose, and the residue in cash; and I also give and bequeath to her all of my 
household furniture and pictures; also, a certain bond and mortgage bearing date 
April 1, 1881, executed to me by Rufus A. Sibley and Alexander M. Lindsley, to 
secure the payment of thirty thousand dollars, which said legacies are to be 
received and accepted by my said wife in full lieu, discharge and satisfaction 
of her dower interest, and of any and every other claim which she may have in or 
to my real estate; and I do hereby direct my executors, in the event that there 
should be, for any reason, any delay in paying to her the amount hereby 
bequeathed, to pay to her for her support and maintenance the sum of two hundred 
and fifty dollars monthly until such legacies shall be paid to her as aforesaid."

The testator had no children either at the time of making his will or at the 
time of his death. At the time of the execution of the will he possessed real 
estate which he, in one of the clauses of the will, estimated at the value of 
$30,000, which before his death he had alienated, and at the time of his death 
he was not seized of any real estate. Before the testator's death the $30,000 
bond and mortgage mentioned and described in the first item of the will and 
therein bequeathed to his wife, the defendant, Mary A. Robinson, was fully paid 
to him and by him discharged. Before his death the testator had disposed of all 
of his stock in the New York Central and Hudson River Railroad Company. His 
personal estate was of the value of $112,605, as estimated by the referee, 
including the household furniture and pictures, which were of the value of 
$2,000.

The referee found and determined, as a matter of fact, that it was the intention 
of the testator, in executing his will, that the full sum of $80,000 should be 
secured to his wife, Mary A. Robinson, in addition to the household furniture 
and pictures; and the reference in the first clause of the will to the New York 
Central Railroad stock, and the mortgage made by Sibley and Lindsley, was for 
the purpose of indicating the fund which he desired to be appropriated for that 
purpose; and held, as conclusion of law, that the legacy of $30,000 to his wife 
was a pecuniary or demonstrative legacy, and not specific, and that the same was 
not addeemed by the payment of the bond and mortgage and the discharge of the 
same of record by the testator; and that she was entitled to receive from the 
plaintiff, as executor, the full sum of $30,000 out of the general assets of his 
estate, in addition to the $50,000 mentioned, the said mortgage having been paid 
up in full. The will bears date the 17th day of January, 1883, and the testator 
died on the 15th day of March, 1887. The bond and mortgage referred to was dated 
the 1st day of April, 1881, and was payable in four equal annual installments 
after the 1st day of April, 1886, and the testator received payment in full in 
discharge of the mortgage on the 11th of November, 1884. The payment was 
received by draft for the sum of $30,000, made payable to the order of and 
indorsed by the testator.

Garlock & Beach, for the appellants.

Henry W. Conkling, for the appellant William J. Badger.

Parker & Drake, for the plaintiff and respondent.

Sutherland & Shuart, for the widow and respondent, Mary A. Robinson.

Barker, P. J.:

The learned referee held that by the first clause of the will the testator 
intended to give to his wife the sum of $30,000, being the amount of a bond and 
mortgage therein referred to, and then owned by him, in addition to the other 
legacies mentioned in the same clause of the will; that such bequest was not a 
gift of the debt or obligation secured by the mortgage, but of a specific sum of 
money equal in amount to the debt to be realized out of the bond and mortgage, 
which was designated as the source from which the funds were to be realized for 
its payment. If such was the intention of the testator, then the payment of the 
bond and mortgage in his lifetime was not an ademption or revocation of the 
legacy, and the legatee may demand its payment from the executor out of the 
general assets belonging to his estate.

The residuary legatees dispute the correctness of the construction given the 
will by the referee, and claim that it defeats the purpose of the testator, 
which was, as they contend, to give and bequeath to his wife the bond and 
mortgage as a separate and distinct item of his personal estate as it existed at 
the time of the making of his will, and nothing more. If this construction 
expresses the intention of the testator, the legacy was specific, and the 
payment and satisfaction of the debt in his lifetime was an ademption of the 
legacy. A specific legacy is a bequest of a particular thing or money specified 
and distinguished from all other property of the same kind, the title of which 
would vest in the legatee on the death of the testator with the assent of the 
executor. It differs from a general or pecuniary legacy in this respect, that if 
the thing, security or money bequeathed is lost, paid or destroyed in the 
lifetime of the testator, the legatee will not be entitled to any recompense or 
satisfaction out of his personal estate; whereas, a general legacy is to be paid 
out of the assets of the testator, when converted into money, if the same is 
sufficient for that purpose, and in the order prescribed in the will. (Roper on 
Legacies, chap. 3, § 1, p. 192.) In brief, the question presented is, was this a 
general or specific legacy within the sense and meaning of those terms as used 
by courts and commentators? In discussing the subject in all cases the intention 
of the testator is to prevail, and his purpose is to be derived from a 
consideration of all the material provisions of the will construed, and of the 
extrinsic circumstances respecting the situation of the testator's family and 
estate at the time of making the will, which may be fairly brought to bear upon 
the question of intent. (Pierrepont v. Edwards, 25 N. Y., 128; Davis v. 
Crandall, 101 id., 311.) The general rules of construction applicable to this 
class of cases are substantially the same as those which prevail in all other 
cases where the intention of the testator is left in doubt in consequence of the 
language used by him in expressing his purpose. Inasmuch, however, as the 
legacy, if specific, is lost in case the subject of it is disposed of by the 
testator, or is extinguished by payment or otherwise in his lifetime, it was 
said by Selden, J., in Giddings v. Seward (16 N. Y., 365), that "courts 
proceeding upon the presumption that the testator intended a real benefit to the 
legatee, incline to consider legacies general rather than specific, where the 
language of the bequest will admit of that construction." These observations 
were repeated by the court in Tift v. Porter (8 N. Y., 521) with some additional 
remarks made by Johnson, J., viz: "The presumption is stronger that a testator 
intends some benefit to a legatee than that he intends a benefit only upon the 
collateral condition that he shall remain till death owner of the property 
bequeathed. * * * An intention of benefit being once expressed, to make its 
taking effect turn upon the contingency of the condition of the testator's 
property being unchanged, instead of upon the continuance of the same feelings 
which, in the first instance, prompted the selection of the legatee, requires, 
as it ought, clear language to convey the intention. The rule, as settled, 
accords best with the dictates of experience as to the probable purposes which 
actuate men in disposing of their property by will." In all the cases bearing on 
the question whether the legacy is specific or general, as the rule is stated 
with uniformity, that to make a legacy specific it is necessary that it should 
appear that it was the clear purpose of the testator to make it such, other wise 
the legacy will be held to be pecuniary or demonstrative. In seeking the 
intention of the testator in this case we have not failed to keep in mind the 
canons of construction which we have before stated. The referee, in his opinion, 
which is printed with the papers, held, in substance, and his decision rests 
upon the ground that the bequest of the bond and mortgage belongs to that class 
of legacies commonly called demonstrative.

Such bequests partake so far of the nature of specific legacies that the 
security referred to in the bequest, if in existence and belonging to the estate 
of the testator at the time of his death, is set apart as the primary fund for 
the payment of the legacy; and, if the same has been paid up or otherwise 
extinguished, the legacy is to be paid out of the assets of the testator's 
estate as a general legacy. To our minds it seems clear and certain, that the 
meaning and effect of the language in the first clause of the will was to give 
and bequeath the bond and mortgage specifically to the legatee, and if the 
testator had remained the owner of the same up to the time of his death, the 
legatee could, as a matter of right, have demanded from the executor the 
transfer of the security to herself, whatever may have been its value at that 
time. We are unable to find, in the remaining provisions of the first clause of 
the will any provision or direction that fairly indicates an intention on the 
part of the testator to change or alter the effect or meaning of the words used 
in making the bequest of the bond and mortgage. They are in the nature of 
instructions by the testator to his executor, directing and empowering him to 
pay the legatee $250 monthly if for any reason there should be any delay on his 
part in paying over to her the pecuniary legacy in the form and manner as 
provided in the preceding clause of the will. The words used, "in the event 
there should be, for any reason, any delay in paying to her the amount hereby 
bequeathed," evidently refers to the pecuniary bequest of $50,000, for he had 
given and bequeathed to her that sum "to be paid to her by his (my) executors 
immediately after his (my) decease." The use of the plural of the word "legacy," 
as it appears in the clause relative to the making of the payment of $250 
monthly, was evidently used by mistake, and if not, then the monthly payment 
would continue until the gift of the household furniture and pictures were 
actually transferred to the legatee, which could not have been the intention of 
the testator. The testator designed that, his widow should realize the interest 
and income of the bequest of $50,000 immediately after his death, and if for any 
cause the principal should not be paid over as directed, then, and in that 
event, the executors were authorized to pay her the sum mentioned monthly, which 
is equal to the legal rate of interest on the sum bequeathed.

We think it proper to direct a new trial instead of modifying the judgment so as 
to conform to our views as to the proper construction to be placed upon the 
will, so that the widow may have an opportunity on the retrial to maintain, if 
she can, by proper proof, the fact alleged in her answer, that when the bond and 
mortgage was paid up the proceeds were transferred to her by the testator to be 
held in her own right and as a part of her individual estate. The referee 
refused to pass upon this question, as by his construction of the will it became 
immaterial to determine that issue. We think it also proper to defer a decision 
upon the other questions until that issue is disposed of.

New trial granted before another referee, with costs to abide the final award of 
costs.

Dwight and Childs, JJ., concurred.

Judgment reversed, new trial granted before another referee, with costs of this 
appeal to abide the final award of costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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