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First Department, July, 1911.

[Vol. 146. number of said beneficiaries as shall have survived me and to the extent of said deceased beneficiaries' interest,” the share of a beneficiary who predeceased the testatrix remains part of the residuary estate and should be added in equal proportions to the other ten residuary interests. As to the interest of such deceased legatee, the testatrix does not die intestate, especially if it is apparent from other provisions of her

will that she intended to dispose of all her property. A paragraph of the will whereby testatrix gave to each beneficiary &

power to bequeath the share of the principal of the residuary estate on which such beneficiary had received the income during his life and that, in the event of a failure to exercise such power, the share of the principal should go to the heirs and next of kin of the beneficiary, evinces an intention to dispose of all her estate.

APPEAL by Joaquin A. Lawrence and Espinosa and another, as administrators, etc., and others, from part of a decree of the Surrogate's Court of the county of New York, entered in said Surrogate's Court on the 3d day of March, 1911, construing the will of the testatrix and settling the accounts of the administrators with the will annexed.

Nicholas W. Hacker, for the appellants.

No appearance for the respondents. LAUGHLIN, J.:

The only provisions of the decree brought in question by the appeal are those relating to one one-eleventh interest in the residuary estate which the testatrix attempted to devise and bequeath to Abraham Lawrence and Espinosa, who predeceased the testatrix, unmarried and without issue. The learned surrogate decided that as to this interest the testatrix died intestate. The appellants contend that it remained part of the residuary estate and was added in equal proportions to the other ten residuary interests. The testatrix, after directing the payment of her debts and funeral expenses and making certain bequests, by the 6th clause of her will provided as follows:

“I give, devise and bequeath to my executors hereinafter named all the rest, residue and remainder of my estate, both real and personal, of every kind and nature whatsoever and wherever situated, in trust nevertheless for the following uses and purposes, to wit:

“1. To set apart a sufficient portion of my estate as will in

App. Div.]

First Department, July, 1911. their judgment produce an annual income of one thousand two hundred dollars, as a separate trust for the benefit of my sister Tomasa A. Espinosa, widow of James W. Lawrence, the said income to be paid her in monthly installments, during the term of her natural life, and upon her death I direct that the principal of said trust fund shall become part of my residuary estate.”

The only other provisions of the will essential to a decision of the clause under construction are the 7th and 8th paragraphs which are as follows:

Seventh. If at the time of my death any of the beneficiaries named in the foregoing Sixth paragraph shall have died, then I will and direct that the said eleven shares into which my estate is directed to be divided shall be reduced in number to the number of said beneficiaries as shall have survived me, and to the extent of said deceased beneficiaries' interest.

Eighth. Upon the death of any of the beneficiaries of the income of my said residuary estate, I direct that a share of the principal of said trust estate equal in proportion to the share which such beneficiary so dying has annually received from the income thereof shall be paid to such person or persons to whom such beneficiary so dying shall have bequeathed the same by a last will and testament duly probated; and if such beneficiary so dying shall not have designated by will to whom he or she shall desire the same to be paid, then I will and direct that said share shall be paid to the heirs or next of kin of said deceased beneficiary.”

There is some ambiguity in the 7th paragraph of the will owing to the fact that after directing that in the event of any of the beneficiaries named in the 6th paragraph of the will predeceasing the testatrix she directed that the number of shares into which her estate should be divided should be reduced by the number of beneficiaries so predeceasing her, and then added the clause, and to the extent of said deceased beneficiaries' interest."

We are of opinion that the proper construction of this paragraph of the will, taken as a whole, is that the deceased intended that her entire residuary estate should be divided into as many shares as there were beneficiaries named in the 6th paragraph of the will who survived her, instead of being divided into eleven shares, as she directed in the event that they all

First Department, July, 1911.

[Vol. 146. survived her; and it necessarily follows, if this be so, that the share which would have otherwise gone to the deceased beneficiary is added proportionately to the interest of the surviving beneficiaries. If she did not intend to dispose of any eleventh residuary interest in the event that the beneficiary predeceased her there would be no occasion for the direction for the reduction of the number of shares into which her residuary estate should be divided. The practical effect of the decree as made by the surrogate is to divide the residuary estate into eleven shares and to give each beneficiary who survived the testatrix one-eleventh, and to give the next of kin and heirs of the testatrix the remaining one-eleventh as intestate property, upon the theory that the testatrix intended to exclude it from the operation of her will. That theory involves two divisions of the residuary estate. It would have to be divided into eleven parts first, and then, after deducting such of those parts as were intended for beneficiaries who had died, the remainder would have to be divided into as many parts as there were surviving beneficiaries; but, as already stated, the second division thus directed on that theory would be unnecessary, for the desired result would have been already accomplished by the original division into elevenths. Our construction is, we think, emphasized and enforced by the provisions of the 8th paragraph of the will, wherein she gives to each beneficiary a power of appointment with respect to the principal of the residuary estate on which such beneficiary has received the income, and in the event of the failure to exercise the same she gives such principal to the heirs and next of kin of such beneficiary; for this shows that she intended by her will to dispose of all of her property.

The decree of the surrogate in so far as appealed from should be reversed, therefore, with costs to the appellants payable out of the estate, and the decree should be modified in accordance with the views herein expressed.

INGRAHAM, P. J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.

Decree, so far as appealed from, reversed, with costs to appellants payable out of estate, and decree ordered as directed in opinion. Order to be settled on notice

App. Div.]

First Department, July, 1911.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE CITY
OF NEW YORK, Appellant, v. WILLIAM O'TOOLE, Respondent,
Impleaded with ROBERT MUH and Others, Composing the
Board of Assessors of the City of New York, Defendants.
THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE CITY
OF NEW YORK, Appellant, v. JULIA E. GOOSSEN, Respond-
ent, Impleaded with ROBERT Muh and Others, Composing
the Board of Assessors of the City of New York, Defendants.
THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE CITY
OF NEW YORK, Appellant, v. SANDROCK REALTY COMPANY,
Respondent, Impleaded with ROBERT MUH and Others, Com-
posing the Board of Assessors of the City of New York,
Defendants.
THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE CITY

OF NEW YORK, Appellant, V. BRONX BATH COMPANY,
Respondent, Impleaded with ROBERT MUH and Others, Com-
posing the Board of Assessors of the City of New York,
Defendants.

First Department, July 7, 1911.

Certiorari – power of court - amended return - remedy for false

return.

The court cannot correct or amend a return in certiorari proceedings. The Special Term has no authority to amend or correct a return of the board of assessors of the city of New York in certiorari proceedings to review awards for damages for the construction of a bridge by incorporating therein a recital that certain evidence was considered by the

assessors.

This is so although the members of the board who made the determination

sought to be reviewed are no longer in office. The only power of the court in such a case is to direct a further return to be made by the board, body or officer whose action is sought to be reviewed. If the return be false, the only remedy of one aggrieved is an action for a false return.

APPEAL by the relator, The City of New York, in each of the four above-entitled proceedings, from an order of the Gupreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on First Department, July, 1911.

[Vol. 146.

the 12th day of April, 1911, correcting and amending the original printed returns to writs of certiorari.

Charles J. Nehrbas, for the appellant.

William H. Daigneault, for the respondents.

LAUGHLIN, J.:

No objection was or is taken to combining in a single application motions in the four proceedings, and, therefore, that irregularity need not be considered.

These are certiorari proceedings to review awards made by the board of assessors of the city of New York for damages alleged to have been caused by the construction of the approach to the bridge over the Harlem river at Willis avenue. Returns to the writs were duly made and filed by the assessors. On application of the claimants, who are parties to the proceedings, the corporation counsel stipulated that certain corrections be made in the returns, but he refused to accede to their request that the returns be amended by setting forth certain evidence which the claimants asserted was received and considered by the assessors but not set forth in the returns. Instead of applying for a further return the claimants applied at Special Term for an order amending the returns in the particular to which reference has been made. The evidence on the part of the claimants upon which it was contended that certain evidence was considered by the assessors which was not set forth in the returns was not uncontroverted; but if it had been the court was without authority to make a return for the assessors, which is the effect of the order incorporating in the return a recital that certain evidence was considered by them. (Code Civ. Proc. SS 2134, 2135; People ex rel. Higgins v. Grant, 58 Hun, 158; People ex rel. Joline v. Willcox, 198 N. Y. 433.) The only authority of the court in such matters is to direct a further return to be made by the board, body or officer whose action is sought to be reviewed; and in the event that the return is false the only remedy of any one aggrieved thereby is an action for a false return. (People ex rel. Lester v. Eno, 176 N. Y. 513.) The theory upon which the claimants seek to sustain the right of the court to amend the return is that the

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