master rule in New York

1962While the general rule is that a legacy of the contents of a receptacle passes whatever is contained therein at the time of the death (Matter of Thompson, 217 N. Y. 111 ; Davids Wills, §§ 761, 762), this general rule is subordinate to the master rule that the intention of a testator must always govern.” (See, also, Central Union Trust Co. v. Flint, 198 App. Div. 703 ; Fenton v. Fenton, 35 Misc. 479 .) The memorandum sent by testator to his attorney in connection with the preparation of his will reveals that the testator was a man of culture and artistic attainment who had thought long and care

1947Words are necessary to construct a will, but such words ordinarily are to be given only that meaning which the testator intended, or as expressed in Central Union Trust Co. v. Flint ( 198 App. Div 703, 707 ), “ The provisions of a will with respect to a legacy or bequest are given a broad or narrow construction in order to carry into effect the intent of the testator,” and in Matter of Rothschild ( 161 Misc. 888, 889 ), “ while the general rule is that a legacy of the contents of a receptacle passes whatever is contained therein at the time of the death * * *, this general rule is subordinate

1962While the general rule is that a legacy of the contents of a receptacle passes whatever is contained therein at the time of the death (Matter of Thompson, 217 N. Y. 111 ; Davids Wills, §§ 761, 762), this general rule is subordinate to the master rule that the intention of a testator must always govern.” (See, also, Central Union Trust Co. v. Flint, 198 App. Div. 703 ; Fenton v. Fenton, 35 Misc. 479 .) The memorandum sent by testator to his attorney in connection with the preparation of his will reveals that the testator was a man of culture and artistic attainment who had thought long and care

1937While the general rule is that a legacy of the contents of a receptacle passes whatever is contained therein at the time of the death (Matter of Thompson, 217 N. Y. 111 ; Davids Wills, §§ 761, 762), this general rule is subordinate to the master rule that the intention of a testator must always govern.

1961The general rule of construction is that a will speaks as of the time of the testator’s death and, while this general rule is subordinate to the master rule that the intention of the testator always governs, no basis exists for finding that this testator had a special intent (cf. Matter of Rothschild, 161 Misc. 888 ; Matter of Hulse, 190 Misc. 6 ).

1947Words are necessary to construct a will, but such words ordinarily are to be given only that meaning which the testator intended, or as expressed in Central Union Trust Co. v. Flint ( 198 App. Div 703, 707 ), “ The provisions of a will with respect to a legacy or bequest are given a broad or narrow construction in order to carry into effect the intent of the testator,” and in Matter of Rothschild ( 161 Misc. 888, 889 ), “ while the general rule is that a legacy of the contents of a receptacle passes whatever is contained therein at the time of the death * * *, this general rule is subordinate

1961The general rule of construction is that a will speaks as of the time of the testator’s death and, while this general rule is subordinate to the master rule that the intention of the testator always governs, no basis exists for finding that this testator had a special intent (cf. Matter of Rothschild, 161 Misc. 888 ; Matter of Hulse, 190 Misc. 6 ).

1960(Matter of Hulse, supra.) This intention can be gathered from the will and the surrounding circumstances.

1974This, then, is not a case where the testator bequeathed certain real estate “with .all the lands, buildings and appurtenances there unto belonging, or in any wise appertaining, and including all the furniture and personal property in and upon the same, or in any manner connected therewith ” (Matter of Reynolds, 124 N. Y. 388, 390 ).

1962While the general rule is that a legacy of the contents of a receptacle passes whatever is contained therein at the time of the death (Matter of Thompson, 217 N. Y. 111 ; Davids Wills, §§ 761, 762), this general rule is subordinate to the master rule that the intention of a testator must always govern.” (See, also, Central Union Trust Co. v. Flint, 198 App. Div. 703 ; Fenton v. Fenton, 35 Misc. 479 .) The memorandum sent by testator to his attorney in connection with the preparation of his will reveals that the testator was a man of culture and artistic attainment who had thought long and care

1937In Central Union Trust Co. v. Flint ( 198 App. Div. 703 ) the court (at p. 707) discussed a gift of the contents of a house and said: “ The provisions of a will with respect to a legacy or bequest are given a broad or narrow construction in order to carry into effect the intent of the testator.” The court there cited Matter of Lowe ( 149 App. Div. 347 ; modfd. and affd., 206 N. Y. 671 ).

1937In Central Union Trust Co. v. Flint ( 198 App. Div. 703 ) the court (at p. 707) discussed a gift of the contents of a house and said: “ The provisions of a will with respect to a legacy or bequest are given a broad or narrow construction in order to carry into effect the intent of the testator.” The court there cited Matter of Lowe ( 149 App. Div. 347 ; modfd. and affd., 206 N. Y. 671 ).

1927(Betor v. City of Albany, 193 App. Div. 349 ; Featherston v. Newburgh & C.

1927Co. v. Ensley Transfer & S. Co. ( 211 Ala. 298 ; 100 So. 342 ) the court said: “ Obviously, whenever the master,, whether a corporation or an individual, is guilty of a tort through the misfeasance or willfully wrongful conduct of a servant, the servant is for the same conduct personally guilty and Hable. * * * And, vice versa, when the conduct of the servant does not render him personally liable, it cannot impose Habihty upon the master under the doctrine of respondeat superior.” Another development of the same principle is the holding that when the plaintiff has been defeated in an action ag

1927Co. v. Ensley Transfer & S. Co. ( 211 Ala. 298 ; 100 So. 342 ) the court said: “ Obviously, whenever the master,, whether a corporation or an individual, is guilty of a tort through the misfeasance or willfully wrongful conduct of a servant, the servant is for the same conduct personally guilty and Hable. * * * And, vice versa, when the conduct of the servant does not render him personally liable, it cannot impose Habihty upon the master under the doctrine of respondeat superior.” Another development of the same principle is the holding that when the plaintiff has been defeated in an action ag

1908(Benzing v. Steinway & Sons, 101 N. Y. 547 .) The servant, testifies that-on the Friday before the accident he noticed that the hamper fell two or three times while his foot was off the treadle ; that he informed the machinist-of the defendarit who thereafter told him that he had'“ fixed ” it, that it was in proper condition and to resume its use.

1905(Kain v. Smith, 25 Hun, 146 ; affd., 89 N. Y. 375 ; Rollings v. Levering, 18 App. Div. 223 .) Nor can it be held upon this evidence that the claimant assumed the risk.

1905(Kain v. Smith, 25 Hun, 146 ; affd., 89 N. Y. 375 ; Rollings v. Levering, 18 App. Div. 223 .) Nor can it be held upon this evidence that the claimant assumed the risk.

1902It is that the master has the privilege and responsibility of selecting, disciplining and removing his employees, and the interests of society require that he shall exercise care in the selection of servants, the character of whose service makes it possible that their careless acts may result in injury to others. i *512 The reason found expression in Maxmilian, v. Mayor, etc., of N. Y. ( 62 N. Y. 160 ) in these words: “ This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent, or skillful, or well-behaved, and to