residuary clause in New York

1963In view of the reluctance to resort to the “ residue of a residue ” rule if any gleam of intent can be utilized and recognizing that, if a will provides a true residuary clause, such clause is to be broadly construed (Lamb v. Lamb, 131 N. Y. 227 ), the court is of the opinion that the purpose of this testatrix was to provide for her relatives and to bequeath the true residuary of the trust remainder to the hospital (Matter of Purvey, supra).

1962(Lamb v. Lamb, 131 N. Y. 227 .) An examination of the will and codicil in this proceeding provides us with “ tokens ” of the testatrix’ intention (Oliver v. Wells, supra) that take this residuary clause out of the usual rule.

1967The residuary clause directed the disposition of the remainder of her estate “of which I may die seized or possessed, or in which I may have any interest or over which I may have any power of appointment or testamentary disposition, including any lapsed legacies ”, The Surrogate, following Wright v. Wright ( 225 N. Y. 329 ), held that there can be no residue of a residue, and that Reiser’s share of the residuary estate passes in intestacy. 1 would construe the will to hold that Reiser’s share passes to the two surviving residuary legatees.

1961Such a lapsed legacy may not be used to augment the shares of the other residuary legatees since the residuum passing under the residuary clause cannot be augmented by a “residue of a residue” (Wright v. Wright, 225 N. Y. 329 ).

1934The rule in this State is well settled and is clearly stated in the decision in Brill v. Wright ( 112 N. Y. 129 ), which states: “ Where in a will general legacies are given, followed by a gift of all the rest and residue of the real and personal property of the testator, by a residuary clause in the usual form and nothing more, it must now, we think, be regarded as the established Pule in this state that the language of the will alone, unaided by extrinsic circumstances, is insufficient to charge the legacies upon lands included in the residuary devise.” A decree may enter to the effect that

1930C. 689.) On the other hand, it was expressly held in Brill v. Wright ( 112 N. Y. 129,134 ): “ general language in a will, giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty.” In Briggs v. Carroll ( 117 N. Y. 288 ) the court said (at p. 292): “ We are very far from saying that a residuary clause, blending in its form of disposition both real and personal estate, will produce a .charge upon the former for the payment of legacies wherever the personal estate proves insufficient.” This doctrine, contrary to the position now considere

1960(Shult v. Moll, 132 N. Y. 122 .) Because a residuary clause will therefore be broadly construed wherever possible (Matter of Miner, 146 N. Y. 121 ; Chemical Bank & Trust Co. v. Streat, 237 App. Div. 441 , affd. 263 N. Y. 159 ), a lapsed legacy will pass under a residuary clause in the absence of a contrary intention (Riker v. Cornwell, 113 N. Y. 115, 126 ; Lamb v. Lamb, 131 N. Y. 227, 235 ).

1958(Floyd v. Carow, 88 N. Y. 560, 568 ; Riker v. Cornwell, supra.) The will does not make any disposition of the trust remainder, and it thus falls into the residue. (3) A further question arises in respect of the residuary clause.

1934Wingate, S. In view of the familiar principle that the personalty of a decedent is the primary fund for payment of general legacies and that these will not be held to be a charge on realty passing under a residuary clause in the absence of an express contrary direction in the will or a “ clear intent to the contrary ” (Bevan v. Cooper, 72 N. Y. 317, 322 ; Matter of Lilienthal, 139 Misc. 225, 229 ), the burden rests upon any person contending for a diverse result to demonstrate in any given case the presence of one or the other of the conditions precedent required for the avoidance of the usual

1921The legatee here was one of the tes tutor’s sons, and the devises to him and to the other son in connection with the amount of the legacy to each and the reason given for fixing the same evinces an intention to make both equal. * * * it raises the presumption that the testator designed the real estate should be made chargeable with the payment of the legacies. ” In Bevan v. Cooper, 72 N. Y. 317 , where the gifts were to the wife and children of testator and were contained in the residuary clause, the court said in refusing to charge the general legacies upon the land: “ It is of much moment, t

1957It does not appear that the omission of this sentence in the dispositions in question represents a sufficient indication of testatrix ’ intention to avoid the normal effect of a residuary clause, viz: to dispose of “ whatever may fall into the residue, whether by lapse, invalid dispositions or other accident.” (Riker v. Cornwell, 113 N. Y. 115, 127 ; see, also, Langley v. Westchester Trust Co., 180 N. Y. 326 ; Matter of Cole, 235 N. Y. 48 ; Matter of Welsh, 1 Misc 2d 440 .) Accordingly the objection of the Home is sustained and the subject property will be distributed as residuary property.

1955Clause Tenth — the residuary clause — is broad enough to embrace within it the said remainder (Matter of Cole, 235 N. Y. 48, 56 ; Matter of Frayer, 155 Misc. 811 , affd. 246 App. Div. 703 ) and the will is so construed.

1932(Briggs v. Carroll, supra.) (f) The presence of a power of sale of real estate, otherwise unnecessary, may help the legatees (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354 ; Dunham v. Deraismes, 165 id. 65); as may the blending of real and personal property in the residuary clause.

1932(Briggs v. Carroll, 117 N. Y. 288 .) The court in the course of its opinion stated: “ We are very far from saying that a residuary clause, blending in its form the disposition of both real and personal estate, will produce a charge upon the former for the payment of legacies whenever the personal estate proves insufficient.

1962Although there is a presumption against intestacy, especially where there is a residuary clause, such presumption has many exceptions (Matter of Disney, 190 N. Y. 128 ) and yields to a contrary intention expressed in the will, or where the dominant purpose of a testator will be defeated (Matter of Tamargo, 220 N. Y. 225 ; Matter of Maybaum, 296 N. Y. 201 ; Matter of Saunders, 262 App. Div. 578 ).

1958By the use of these words in the residuary clause the testator disclosed his intention to make a gift to his and ¡his wife’s nieces and nephews and by substitution or representation to the descendants of his and his wife’s nieces and nephews; in other words to any grandnephews or grandnieces whose parent (nephew or niece) had predeceased the life tenant (Matter of Burggraf, 12 Misc 2d 152 ; Matter of Tamargo, 220 N. Y. 225 ; Matter of Ginsburg, 102 N. Y.

1971For these reasons, it is held that it was the intention of testatrix to include the farm land parcel within the term “ residence ” and, even under this determination, respondent will receive two lots under the residuary clause (cf. Floyd v. Carow, 88 N. Y. 560, 568 ).

1960In Matter of Floyd v. Carow ( 88 N. Y. 560 ) the court held that an undisposed of remainder in a life estate under an earlier clause passed under the residuary clause of the will.

1942The theory is that the testator, in severing particular parts of his estate from the rest and bequeathing them specifically, may be presumed to have intended to have these gifts preferred to others.” (2 Davids on New York Law of Wills, § 1082, citing Taylor v. Dodd, 58 N. Y. 335, 349 , and Matter of Smallman, 138 Misc. 889, 895 .) It has been decided that, where there are insufficient funds with which to pay general legacies at the time of the execution of the will and at the time of death, the general legacies may be a charge or lien on the realty included within a residuary clause (McCorn v.

1941(Reynolds v. Reynolds, 16 N. Y. 257 .) The first paragraph of the will directs the payment of debts and funeral expenses; the second bequeaths $1,000 to the nephew and the third reads: “ All the rest, residue and remainder of my estate, both real and personal, I do give, devise and bequeath unto my wife,” etc. Aside from the fact that the bequest to the nephew was the first gift made by the will, and the further fact that there was a blending of both real and personal property in the residuary clause (McCorn v. McCorn, 100 N. Y. 511 ), there is little or nothing in the will to indicate an inte

1932(Scott v. Stebbins, 91 N. Y. 605, 613 ; McCorn v. McCorn , 100 id. 511 ; Brill v. Wright, 112 id. 129.) (g) The direction to the executor to pay the transfer tax on the legacies from the residue is a circumstance suggesting that the legatees should be paid in full.

1893Rep. 480,) and the language of the will is the basis of inquiry, aided by extrinsic circumstances, prominent among which is the absence of sufficient personal property, and the relationship of the beneficiaries to the testator, (Scott v. Stebbins, 91 N. Y. 605 .) While this rule is not generally extended to defeat specific devises,—for these segregate from the estate certain property,—it is more aptly applied to the residuary clause, where personalty and realty are blended together, and go to wind up the testator’s estate.

1960In Matter of Bustis ( 140 Misc. 344 ) the question was whether the reversionary interest of an inter vivos trust, executed prior to the will, should pass under the residuary clause of the will or whether such interest passed by intestacy.

1960Matter of Eustis ( 140 Misc. 344 ) involved a situation where the testator clearly intended that certain property should not pass under the residuary clause of the will.

1949(Matter of McGowan, 134 Misc. 409 , and cases cited at page 412, affd. 228 App. Div. 779 , affd. 254 N. Y. 513 ; Matter of Lummis, 101 Misc. 258, 270 .) In addition, there is a complete blending of her real and personal property in the residuary clause which disposes of “ all the rest, residue and remainder of my estate, real and personal ” (italics by the court), which is also some indication of an intention to charge the real property with payment of the legacies.

1921The same is true of the mention of real estate and personalty in the residuary clause.” In Matter of Lummis, 101 Misc.

1932(Briggs v. Carroll, supra.) (f) The presence of a power of sale of real estate, otherwise unnecessary, may help the legatees (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354 ; Dunham v. Deraismes, 165 id. 65); as may the blending of real and personal property in the residuary clause.

1916(Briggs v. Carrol, supra.) The presence of a power of sale of real estate otherwise unnecessary may help the legatees (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354 ; Dunham v. Deraismes, 165 N. Y. 65 ), as may the blending of real and personal property in the residuary clause.

1969In Matter of Reynolds ( 242 N. Y. 389 ) the court decided that the remainder after the life estate should be placed in the residuary estate, the turning point there being that the residuary legatees were named specifically in the remainder clause and also named specifically in the residuary clause of the decedent.

1945The question to be determined is whether the remainder is given to the persons named in the residuary clause of the will as in Matter of Reynolds ( 242 N. Y. 389 ) or is to be paid into and form a part of the residuary estate as in Matter of Title G. & T.

1962(Lamb v. Lamb, 131 N. Y. 227 .) An examination of the will and codicil in this proceeding provides us with “ tokens ” of the testatrix’ intention (Oliver v. Wells, supra) that take this residuary clause out of the usual rule.

1948It is his assertion that the part of the residue as to which disposition has failed, vests as intestate property because, under the authorities, the residuum passing under the residuary clause will not be augmented by a “ residue of a residue.” He cites the cases of Oliver v. Wells ( 254 N. Y. 451 ) Wright v. Wright ( 225 N. Y. 329 ) and Matter of Logasa ( 163 Misc. 628 ) as his authorities.

1962(Matter of Reynolds, supra.) Stated otherwise, a general description closely connected with an enumeration of property of a more limited type leads to the prima facie inference that the general description is limited by the particular enumeration and that it includes only things of the same general kind. (4 Bowe-Parker Rev.

1934The court also refers to the other phase of this rule, that the context includes a residuary clause, if there be one in the will, for in its presence there is no leaning to so read as to avoid intestacy. “ Where * * * there is a residuary clause, the whole will must be read as one instrument and such a construction is not to be given a preceding clause as to frustrate the intention of the testator to give the residue to a different beneficiary.” (Matter of Thompson, supra, citing Matter of Reynolds, 124 N. Y. 388, 398 .) So, whether the word “ effects ” is preceded or followed by words of narr

1938In McLean v. McLean ( 174 App. Div. 152 ; affd., 223 N. Y. 695 ) the property in question passed under the residuary clause of the donor’s will to the donee and she had a right to bequeath the property to whomsoever she wished without reference to the exercise of the power clause in her husband’s will.

1934(McLean v. McLean, 174 App. Div. 152 ; affd., 223 N. Y. 695 ; Wright v. Wright, 225 id. 329.) The invalid prior bequests passed under the residuary clause.

1938In McLean v. McLean ( 174 App. Div. 152 ; affd., 223 N. Y. 695 ) the property in question passed under the residuary clause of the donor’s will to the donee and she had a right to bequeath the property to whomsoever she wished without reference to the exercise of the power clause in her husband’s will.

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.

1960The purpose of a residuary clause is to make a disposition of whatever property remains undisposed after debts and particular gifts have been satisfied.” The leading case authority is Matter of Title Guar. & Trust Co. ( 195 N. Y. 339 ).

1931She did not intend that these general legacies should be left open until these trust estates should fall in; and it cannot be assumed that, in referring to her residuary estate, she had in mind anything else than the final residuum which would remain after the payment of all her legacies, and which would finally pass under the residuary clause to the four infants' mentioned therein. * * * “If any other construction is to be placed upon this clause, the result necessarily follows that the testatrix knew that she was giving more in her general legacies than her estate amounted to, and that these

1950(Matter of McGowan, supra; West v. West, supra; Ward v. Stanard, 82 App. Div. 386 ; Matter of Kavanagh, 133 Misc. 399 ; Matter of Faust, 83 Misc. 250 ; Matter of Richards, 150 Misc. 102 .) It is significant to note that the testator used the word “ workshop ” when other words of description could have been readily used.

1934(West v. West, 215 App. Div. 285 ; Ward v. Stanard, 82 id. 386 ; Matter of Faust, 83 Misc. 250, 254 .) A construction which results in intestacy should not be favored when a decedent leaves a will, and the presumption is that the decedent intended to dispose of his entire estate.