general residuary clause in New York

1954On the contrary, the terminology used clearly indicates that testatrix made reference only to “ any and all other shares of stock.” A general residuary clause will be liberally construed to prevent intestacy (Riker v. Cornwell, 113 N. Y. 115, 123 ; Lamb v. Lamb, 131 N. Y. 227, 234 ).

1917(Matter of Allen, 151 N. Y. 243 ; Cruikshank v. Home for the Friendless, 113 id. 337 ; Matter of Miner, 146 id. 121; Langley v. Westchester Trust Co., supra.) There is now no distinction between invalid devises and invalid bequests, “as it respects the operation upon them of a general residuary clause.” (Cruikshank v. Home for the Friendless, supra.) A decision accordingly may be presented.

1962True, a general residuary clause will be given general effect, but this too may be qualified if other testamentary provisions disclose an intention to narrow its general effect (see Lamb v. Lamb, 131 N. Y. 227, 234-345 ; cf. Matter of Miner, 146 N. Y. 121 , especially 130-131, involving a will drawn by a layman testator).

1954On the contrary, the terminology used clearly indicates that testatrix made reference only to “ any and all other shares of stock.” A general residuary clause will be liberally construed to prevent intestacy (Riker v. Cornwell, 113 N. Y. 115, 123 ; Lamb v. Lamb, 131 N. Y. 227, 234 ).

1962In Matter of Hoffman ( 201 N. Y. 247 ) the Court of Appeals declined to apply a general residuary clause in a will to an incomplete gift in a codicil, and held that there was a limited intestacy.

1949However, where there is a failure of a gift of part of the residue itself, the lapsed portion will not be employed to augment the shares of the survivors, since admittedly the intention of the testator was to create a gift for each legatee of only a specified segment of the residue (Beek man v. Bonsor, 23 N. Y. 298 ; Matter of Hoffman, 201 N. Y. 247 ; Wright v. Wright, 225 N. Y. 329 ).

1949However, where there is a failure of a gift of part of the residue itself, the lapsed portion will not be employed to augment the shares of the survivors, since admittedly the intention of the testator was to create a gift for each legatee of only a specified segment of the residue (Beek man v. Bonsor, 23 N. Y. 298 ; Matter of Hoffman, 201 N. Y. 247 ; Wright v. Wright, 225 N. Y. 329 ).

1911(Beekman v. Bonsor, 23 N. Y. 298, 314 ; Kerr v. Dougherty, 79 ib. 327, 346; Booth v. Baptist Church of Christ, 126 ib. 215, 245; Morton v. Woodbury, 153 ib. 243, 256.) The general rule that, in a will of personal estate, a general residuary clause carries whatever is not otherwise effectually and legally disposed of, is not applicable where the residue of a residue is in question.

1947(Brill v. Wright, 112 N. Y. 129, 133 ; Matter of Brewster, 144 Misc. 888 .) There are, however, exceptions to this rule, based upon the expressed • or presumed intent of the testator to make the legacies a charge upon his real estate. “ The intention of the testator is the guide.” (Carley v. Harper, 219 N. Y. 295, 301 .) In the absence of special expressions or provisions in .the will indicating the testator’s intent in respect of priority of payment of legacies or of charging the legacies upon real estate, certain presumptions or rules, founded upon general experience and natural inclinations

1930(Brill v. Wright, 112 N. Y. 129 .) ” For a general statement of the rule, and especially the effect of a power of sale in a will, I may revert to Scholle v. Scholle (supra), which I have considered upon another point involved in the construction of this will.

1914(Langley v. Westchester Trust Co., 180 N. Y. 326 ; Morton v. Woodbury, 153 id. 243.) A general residuary clause in a will is created to catch what drops and passes title to what is not otherwise disposed of, and it is only under the most exceptional circumstances, when the contrary intent is manifest, that it does not perform its function.” The legal representatives of the widow are entitled to a one-third part of both funds.

1912(Langley v. Westchester Trust Co., 180 N. Y. 326 ; Morton v. Woodbury, 153 id. 243.) A general residuary clause in a will is created to catch what drops and to pass title to what is not otherwise disposed of, and it is only under the most exceptional circumstances when the contrary intent is manifest that it does not perform its function.

1912(Morton v. Woodbury, 153 N. Y. 243 .) Though the residuary clause is usually, it need not necessarily be the last in the will, and any particular bequest which follows that clause may, if made to different legatees, reasonably be read as an exception out of the property comprised in it. (1 Jarman Wills [6th Am ed.], 728; Morton v. Woodbury, supra.) Nor can any such intent be found in the clause authorizing the executor to compon (compound ?), compromise or settle any claims or demands which may be against or in favor of testator’s estate.

1912(Morton v. Woodbury, 153 N. Y. 243 .) Though the residuary clause is usually, it need not necessarily be the last in the will, and any particular bequest which follows that clause may, if made to different legatees, reasonably be read as an exception out of the property comprised in it. (1 Jarman Wills [6th Am ed.], 728; Morton v. Woodbury, supra.) Nor can any such intent be found in the clause authorizing the executor to compon (compound ?), compromise or settle any claims or demands which may be against or in favor of testator’s estate.

1962True, a general residuary clause will be given general effect, but this too may be qualified if other testamentary provisions disclose an intention to narrow its general effect (see Lamb v. Lamb, 131 N. Y. 227, 234-345 ; cf. Matter of Miner, 146 N. Y. 121 , especially 130-131, involving a will drawn by a layman testator).

1904The rule of construction requires of the court, in dealing with the language of a residuary gift which is ambiguous, that, it should lean in favor of a broad rather than of a restricted construction; for thereby ‘ intestacy is prevented, which it is reasonable to suppose, testators do not contemplate.’ ” Matter of Miner, 146 N. Y. 121 .

1960In Matter of Floyd v. Carow (supra, p. 568 ) the opinion by Andrews, J., restates the rule with respect to a residuary clause as follows: “A general residuary clause carries every real interest whether known or unknown, immediate or remote, unless it is manifestly excluded.

1904It would be idle to multiply the citation of authorities in support of the propositions that “ it is an established rule in the construction of wills that unless a plain intention to the contrary appears, a general residuary clause operates upon and carries to the residuary devisee all reversionary interests * * * whether the reversion was created by the devise in his will of a less interest than a fee or arises from a contingent limitation of the fee which may be defeated by the non-happening of the event upon which the fee is limited.” Floyd v. Carow, 88 N. Y. 560 ; Lamb v. Lamb, 131 id. 227

1953In Matter of Meyer (supra), the Surrogate also cited Albany Hosp. v. Albany Guardian Soc. ( 214 N. Y. 435 ), a decision which held that a renounced devise to a church lapsed and passed under the general residuary clause of the will.

1927(Albany Hospital v. Albany Guardian Society, 214 N. Y. 435, 445 ; Matter of Goldmark, 186 App. Div. 447, 451 ; West v. West, 215 id. 285, 287.) Under a general residuary clause, should any part of the will be declared illegal, such void bequests will fall into the residuum, and only a void bequest of the residuum passes to the next of kin.

1949However, where there is a failure of a gift of part of the residue itself, the lapsed portion will not be employed to augment the shares of the survivors, since admittedly the intention of the testator was to create a gift for each legatee of only a specified segment of the residue (Beek man v. Bonsor, 23 N. Y. 298 ; Matter of Hoffman, 201 N. Y. 247 ; Wright v. Wright, 225 N. Y. 329 ).

1947The only principle which may bé regarded as tentatively applicable to the present situation is as stated in Cochrane v. Schell ( 140 N. Y. 516, 537 ) which is: “ But it was held that where the devise or gift was of a residue, as to part of which the disposition fails, that part will not accrue in augmentation of the remaining part, as a residue of a residue, but instead of retaining the nature of residue, devolves as undisposed of.” The same theory has been applied in other cases as, for example, in Wright v. Wright ( 225 N. Y. 329, 340 ) where the Court of Appeals was concerned with the const

1947(Crawford v. McCarthy, 159 N. Y. 514, 518-519 .) It is the established rule that a general legacy may not be charged against real estate which is devised only by inclusion with personalty in a general residuary clause.

1938(Crawford v. McCarthy, 159 N. Y. 514 ; Calkins v. Calkins, 1 Redf. 337 ; Matter of Gavey, 147 Misc. 332 ; Conway v. Shea, 282 Mass. 25 ; 183 N. E. 717 ; 88 A. L.

1940That “ statute steps in and sends the property, subject to the power, in the same direction as that in which the testatrix has sent her own property.” (Lockwood v. Mildeberger, 159 N. Y. 181, 188 .) As noted above, any undisposed of balance of the appointive property was, under the will of Princess Hatzfeldt, directed to “ fall into and be dealt with as part of my residuary estate.” Thus, even if the trust for the life of de Crespigny had been unauthorized, the general residuary clause would have constituted an effective and valid exercise of the power to him.

1935Necessary is defined to mean: ‘ Such as must be; ’ ‘ Impossible to be otherwise; ’ ‘ Not to be avoided; ’ ‘ Inevitable.’ The intent not to execute the power, therefore, must not be implied unless it so clearly appears that it is not to be avoided.” On the other hand, it is said more recently in Guaranty Trust Co. v. Halsted ( 245 N. Y. 447, at p. 461 ): “ However, if the testator made dispositions of his property which by their very nature are inapplicable to the subject of the power, the intent of the testator not to execute the power would ‘ by necessary implication ’ appear and the power wo

1940(McLean v. McLean, 174 App. Div. 152 ; affd., 223 N. Y. 695 ; Lockwood v. Mildeberger, supra; Low v. Bankers Trust Co., 270 N. Y. 143 ; Matter of Lynn, 174 Misc. 361 ; Pers.

1935In McLean v. McLean ( 174 App. Div. 152 ) an intent not to exercise a power of appointment by a residuary clause was not implied from the fact that the testator, earlier in the will, had expressly exercised the power by appointing a life interest, accompanied by an invalid appointment of the remainder.

1917(Matter of Allen, 151 N. Y. 243 ; Cruikshank v. Home for the Friendless, 113 id. 337 ; Matter of Miner, 146 id. 121; Langley v. Westchester Trust Co., supra.) There is now no distinction between invalid devises and invalid bequests, “as it respects the operation upon them of a general residuary clause.” (Cruikshank v. Home for the Friendless, supra.) A decision accordingly may be presented.

1917(Matter of Allen, 151 N. Y. 243 ; Cruikshank v. Home for the Friendless, 113 id. 337 ; Matter of Miner, 146 id. 121; Langley v. Westchester Trust Co., supra.) There is now no distinction between invalid devises and invalid bequests, “as it respects the operation upon them of a general residuary clause.” (Cruikshank v. Home for the Friendless, supra.) A decision accordingly may be presented.

1964Taken together with the words of article “ sixth ” of the will, the court determines that the testatrix intended a liquidation of all property, real and personal, and conversion to cash (Matter of Alexander, 20 Misc 2d 983, 986 , app. dsmd. 10 A D 2d 819).

1962The “inference is clear and strong” that the testatrix did not intend to die intestate as to any part of her estate (Matter of Haber, 281 App. Div. 383, 385 , affd, 306 N. Y. 706 ), “ The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate.” (Matter of Birdsell, 271 App. Div. 90 , 95, affd, 296 N. Y. 840 .) So, here, certainly we may and should give full effect to the general rule ‘ ‘ that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of.” (Kerr v. Dougherty, 79 N. Y. 327,

1962The “inference is clear and strong” that the testatrix did not intend to die intestate as to any part of her estate (Matter of Haber, 281 App. Div. 383, 385 , affd, 306 N. Y. 706 ), “ The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate.” (Matter of Birdsell, 271 App. Div. 90 , 95, affd, 296 N. Y. 840 .) So, here, certainly we may and should give full effect to the general rule ‘ ‘ that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of.” (Kerr v. Dougherty, 79 N. Y. 327,

1962The “inference is clear and strong” that the testatrix did not intend to die intestate as to any part of her estate (Matter of Haber, 281 App. Div. 383, 385 , affd, 306 N. Y. 706 ), “ The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate.” (Matter of Birdsell, 271 App. Div. 90 , 95, affd, 296 N. Y. 840 .) So, here, certainly we may and should give full effect to the general rule ‘ ‘ that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of.” (Kerr v. Dougherty, 79 N. Y. 327,

1962The “inference is clear and strong” that the testatrix did not intend to die intestate as to any part of her estate (Matter of Haber, 281 App. Div. 383, 385 , affd, 306 N. Y. 706 ), “ The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate.” (Matter of Birdsell, 271 App. Div. 90 , 95, affd, 296 N. Y. 840 .) So, here, certainly we may and should give full effect to the general rule ‘ ‘ that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of.” (Kerr v. Dougherty, 79 N. Y. 327,

1962The “inference is clear and strong” that the testatrix did not intend to die intestate as to any part of her estate (Matter of Haber, 281 App. Div. 383, 385 , affd, 306 N. Y. 706 ), “ The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate.” (Matter of Birdsell, 271 App. Div. 90 , 95, affd, 296 N. Y. 840 .) So, here, certainly we may and should give full effect to the general rule ‘ ‘ that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of.” (Kerr v. Dougherty, 79 N. Y. 327,

1962The “inference is clear and strong” that the testatrix did not intend to die intestate as to any part of her estate (Matter of Haber, 281 App. Div. 383, 385 , affd, 306 N. Y. 706 ), “ The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate.” (Matter of Birdsell, 271 App. Div. 90 , 95, affd, 296 N. Y. 840 .) So, here, certainly we may and should give full effect to the general rule ‘ ‘ that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of.” (Kerr v. Dougherty, 79 N. Y. 327,

1954The court may not construe the will contrary to the clearly expressed intent of the testatrix (Matter of Battell, 286 N. Y. 97 ; Matter of Nelson, 268 N. Y. 255 ; Matter of Smith, 254 N. Y. 283 ; Matter of Watson, 262 N. Y. 284 ).

1954The court may not construe the will contrary to the clearly expressed intent of the testatrix (Matter of Battell, 286 N. Y. 97 ; Matter of Nelson, 268 N. Y. 255 ; Matter of Smith, 254 N. Y. 283 ; Matter of Watson, 262 N. Y. 284 ).

1954The court may not construe the will contrary to the clearly expressed intent of the testatrix (Matter of Battell, 286 N. Y. 97 ; Matter of Nelson, 268 N. Y. 255 ; Matter of Smith, 254 N. Y. 283 ; Matter of Watson, 262 N. Y. 284 ).

1954The court may not construe the will contrary to the clearly expressed intent of the testatrix (Matter of Battell, 286 N. Y. 97 ; Matter of Nelson, 268 N. Y. 255 ; Matter of Smith, 254 N. Y. 283 ; Matter of Watson, 262 N. Y. 284 ).

1953In Matter of Meyer (supra), the Surrogate also cited Albany Hosp. v. Albany Guardian Soc. ( 214 N. Y. 435 ), a decision which held that a renounced devise to a church lapsed and passed under the general residuary clause of the will.

1953In Matter of Walter ( 150 Misc. 512, 516 ) Surrogate Foley stated his concept of the rule of law to be “ that where the legacy has legally and actually lapsed, the doctrine of cy pres cannot save the gift ’ ’, and the Surrogate reiterated this concept in Matter of Walker ( 185 Misc. 1046, 1057 ) with the statement: “ The rule is settled that where a legacy has lapsed, the doctrine of cy pres cannot save the gift.

1953In Matter of Walter ( 150 Misc. 512, 516 ) Surrogate Foley stated his concept of the rule of law to be “ that where the legacy has legally and actually lapsed, the doctrine of cy pres cannot save the gift ’ ’, and the Surrogate reiterated this concept in Matter of Walker ( 185 Misc. 1046, 1057 ) with the statement: “ The rule is settled that where a legacy has lapsed, the doctrine of cy pres cannot save the gift.

1949Ordinarily a lapsed gift will pass under a general residuary clause (Matter of Logasa, 163 Misc. 628 ).

1947The only principle which may bé regarded as tentatively applicable to the present situation is as stated in Cochrane v. Schell ( 140 N. Y. 516, 537 ) which is: “ But it was held that where the devise or gift was of a residue, as to part of which the disposition fails, that part will not accrue in augmentation of the remaining part, as a residue of a residue, but instead of retaining the nature of residue, devolves as undisposed of.” The same theory has been applied in other cases as, for example, in Wright v. Wright ( 225 N. Y. 329, 340 ) where the Court of Appeals was concerned with the const

1947(Brill v. Wright, 112 N. Y. 129, 133 ; Matter of Brewster, 144 Misc. 888 .) There are, however, exceptions to this rule, based upon the expressed • or presumed intent of the testator to make the legacies a charge upon his real estate. “ The intention of the testator is the guide.” (Carley v. Harper, 219 N. Y. 295, 301 .) In the absence of special expressions or provisions in .the will indicating the testator’s intent in respect of priority of payment of legacies or of charging the legacies upon real estate, certain presumptions or rules, founded upon general experience and natural inclinations