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(202 N.Y.S.) Proceeding to construe the will of Edward Mullin, deceased, on petition of the executor. Will construed.

G. S. McCartin, of Watertown, for petitioner and Effie V. Mullin. Floyd W. Haller, of Watertown, special guardian for Sarah Mullin.

ATWELL, S. The testator died on the 7th day of March, 1921. The clauses of his will which petitioner alleges should be construed are the following:

“Third. I give, devise and bequeath to my said wife all the notes, bonds. mortgages, cash on hand or in banks which I may possess at the time of my decease, and also my automobile to be hers absolutely and forever. Said foregoing bequests are made to my said wife in lieu of all dower rights which sbe may have to any of the real estate owned by me at the time of my decease and which I will to my granddaughter, Sarah Mullin, hereinafter described.

"Fourth. I give, devise and bequeath to my said wife the use, profits and income of my farm consisting of ninety acres situate on Pillar Point in said town of Brownville until such time as my granddaughter, Sarah Mullin, shall become twenty-one years of age, at which time I give, devise and bequeath said farm, together with all stock then on said farm absolutely and forever to my said granddaughter, Sarah Mullin. But during said period in which my wife shall be possessed of said farm she shall keep the buildings thereon in ordinary repair and shall replace any cattle or stock which may be necessary to be sold so that at the time my said granddaughter, Sarah Mullin, arrives at the age of twenty-one years, said premises and the personal property thereon shall be in substantially the same condition as they were at the time of my decease.”

The barn on the farm mentioned in the fourth paragraph was destroyed by fire, together with six cows belonging to testator, on the 2d day of March, 1921, five days before the testator's death. The change in the situation of testator's, property wrought by this fire has caused the executor to make this application for construction of the will and instruction as to his duty. The only personal property on the farm belonging to testator at the date of his death consisted of one cow, one pair of scales, and about 200 bushels of oats. The barn was insured for $900, and testator's interest in the produce therein for $150. There was no insurance on the cows.

The testator was so very ill at the time the fire occurred and until his death that it was deemed unwise by his physician and the family to inform him of the destruction of his property, and he died without knowledge of it. The loss of the barn and of the six cows seriously affects the interests of the widow and granddaughter. The destruction of the barn and loss of the dairy will materially reduce the rental value of the farm, and consequently the income to the widow during the use given to her until the granddaughter reaches the age of 21 years, a period of about 4 years, will be greatly reduced, and when the granddaughter comes into possession of the farm at her majority, the market value of it will be likewise reduced.

[1] The question is asked: How is the insurance money, when received, to be treated, whether as real estate or as personal property? The executor, as the personal representative of the deceased, is authorized to collect and receive the amount of the proceeds of the insurance policy.

[2] As to the amount received for loss of the testator's interest in the produce burned, I think there can be no doubt that it is personal property, and that it and the one remaining cow, and the 200 bushels of oats, and the pair of scales are to be treated as unbequeathed assets, as the will contains no residuary clause; and out of the unbequeathed assets the widow is first entitled to her statutory exemptions, as the provision made for her is in lieu of dower only.

[3] As to that part of the proceeds of the policy received for destruction of the barn, while it will be in the form of personal property, it should, as a matter of justice and equity, be treated as real estate in place of the barn. Under the provisions of the insurance policy, the insurance company has the option to rebuild the destroyed building. If the company should avail itself of this option and reconstruct the barn on the farm, it would become the property of the granddaughter, subject to the widow's use until her majority.

The only case cited which seems to be at all analogous is Wyman v. Wyman, 26 N. Y. 253, 258, where Judge Emott, referring to a similar clause in the policy giving the company the right to rebuild, said:

"And it is a strong implication from the existence of such a feature in the contract that its benefits must, in any event, and in either form of performance, inure to those who would, in the case of its literal performance, reap its fruits. My opinion is that in such a case as this the executor or administrator is a trustee for the heir, who alone has been damnified, who has sustained the loss, and who is entitled to the indemnity."

[4] And it seems to me, in order to do justice to the parties, that this money should be retained by the executor and invested by deposit in bank, where it will draw semiannual interest, which should be paid to the widow during the minority of the granddaughter, and upon attaining her majority the principal should be paid to her.

Decreed accordingly.

in re WILBER'S WILL.

(Surrogate's Court, Otsego County. December 28, 1923.) 1. Wills 439-Testator's intent must govern construction.

In construing wills, testator's intent must govern. 2. Wills Omw8l-Valid provisions should be given effect, if possible.

Valid provisions of a will should be given effect, if separable from in

valid provisions, without defeating the general testamentary scheme. 3. Perpetuities A6(5)-Provision of will postponing payment of legacies for five

years held invalid.

A provision of a will that legacies should not be payable for five years after testator's death held invalid, as an unlawful suspension of the power of alienation for more than two lives, under Personal Property

Law, $$ 11, 16, and Real Property Law, 8 42. 4. Perpetuitios ww 9(7)—Provisions of will restraining alienation and postponing

distribution held so interwoven that both must fall.

The provisions of a will in one clause restraining the assignment of either principal or income from legacies, and in another postponing pas. ment of legacies for five years, held to show a common purpose to tie up the estate, and, the first clause being invalid, both must fall. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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(202 N.Y.S.) 5. Wills mol-Elimination of invalid provision held not to destroy testamentary scheme,

Where specific legacies were coupled with an invalid provision postponing distribution for five years, the invalid provision could be elimi

nated, leaving undisturbed the general testamentary scheme. 6. Wills Om612(4)-Request that legatees keep bank stock for life held precatory.

A provision of a will bequeathing bank stock, that "it is my earnest desire and request that each legatee.

shall keep the stock so long as he shall live,” held merely expressive of a wish, and not to cut down or limit the gifts. In the matter of the judicial settlement of the account of the Wilber National Bank of Oneonta, N. Y., as executor and trustee under the will of George I. Wilber, deceased, involving the construction of the will. Will construed.

Alva Seybolt, of Oneonta (H. C. Stratton, of Oxford, of counsel), for executor and trustee.

Owen C. Becker, of Oneonta, for David F. and Esther R. Wilber.

Edson A. Hayward, of Oneonta, for Mary Wilbur Russ, Abram Russ, Vol Ira Russ, Wilber A. Russ, and Flora Lyon.

William L. Ransom (of Whitman, Ottinger & Ransom), of New York City, for Board of Foreign Missions of the Methodist Episcopal Church and Board of Home Missions and Church Extension of the Methodist Episcopal Church. Dennis J. Kilkenny, of Oneonta, special guardian, for Mix infants.

J. S. Waterman, of Oneonta, special guardian, for infant David Forrest Wilber, Jr.

Lee D. Van Woert, of Oneonta, special guardian, for Reynolds infants.

Charles H. Merriam, of Milford, for village of Milford.

George L. Gibbs, of Oneonta, for city of Oneonta, N. Y., and George S. Slade.

L. C. Jones, of Cobleskill, for Myra Wilber.
Lincoln L. Kellogg, of Oneonta, for Edith Wilber Mix and John C.

Mix.

Frank C. Huntington, of Oneonta, for Charles J. Beams.
W. I. Bolton, of Oneonta, pro se.
Theron A. Clements, of New York City, for Cazenovia Seminary.

CLOSE, S. This is a proceeding instituted by the executor of the last will and testament of George I. Wilber, deceased, to construe certain provisions of the decedent's will, particularly the sixty-fourth paragraph and its relation to and effect upon the other provisions thereof; also for a judicial settlement of the accounts of the executor. Before proceeding with the accounting, it is deemed proper to dispose of the aforesaid problems touching construction.

The will was dictated, planned, and prepared by the testator himself, manifestly after much study and careful consideration and is in his own language. It is a lengthy document, comprising 71 paragraphs, wherein the testator disposed of an estate of over $3,000,000. In the first 61 paragraphs the testator provided for annuities, general and specific legacies, and created several trusts. He gave directions as to the disposition of the income from the trusts, and provided for the dis

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tribution of the corpus at the termination of the trust period. The sixty-second, sixty-third, and sixty-fourth paragraphs provide as follows:

“Sixty-Second.-I give, devise and bequeath to my executor and trustee, its successor or successors, all the rest, remainder and residuum of my estate to be held by it in trust for the uses and purposes hereinafter specified. The same shall be divided into two equal parts and the income of one of said parts shall be paid to my brother David F. Wilber or his wife Esther R. Wilber, during their lives, and the life of the survivor of them and the income of one of said parts shall be paid to my niece Edith Wilber Mix during her life for the maintenance, support, care and comfort of themselves and their families respectively. The payments of said income shall be made at such time, or times, and in such amount, or amounts, and in such manner as in the discretion of my said executor and trustee, its successor or successors may seem advisable. I hereby expressly direct that no part of said income shall be assignable, or shall in any way be applied toward the payment of any judgment which has heretofore or may hereafter be recovered or entered against my said brother, or my sa id niece. Upon the death of the survivor of David F. Wilber and his wife Esther R. Wilber, I give, devise and bequeath the one-half of said residuum of which they have the income as herein provided, together with any accumulated income on said one-half of said residuum to the child, or children, of David F. Wilber by his wife Esther R. Wilber and the child or children of any deceased child or children of David F. Wilber by his said wife Esther R. Wilber who may be living at the time of the death of the survivor of David F. Wilber and his wife Esther R. Wilber, share and share alike. If upon the death of the survivor of David F. Wilber and his wife Esther R. Wilber there be no living descendants of David F. Wilber by his wife Esther R. Wilber, then the said one-half of said residuum, together with all accumulated income thereon is hereby given, devised and bequeathed absolutely to the Wilber National Bank of Oneonta, N. Y. Upon the death of Edith Wilber Mix, I give, devise and bequeath the one-half of said residuum, of which she has the income as herein provided, together with ans accumulated income on said one-half of said residuum to the child, or chil. dren, of said Edith Wilber Mix, by her husband John C. Mix, and the child. or children, of any deceased child, or children, of Edith Wilber Mix by her said husband John C. Mix who may be living at the time of the death of said Edith Wilber Mix, share and share alike. If upon the death of Edith Wilber Mix, there be no living descendants of Edith Wilber Mix, by her said husband John O. Mix, then the said one-half of said residuum, together with all accumulated income thereon, is hereby given, devised and bequeathed absolutely to the Wilber National Bank, of Oneonta, N. Y.

"Sixty-Third.--I hereby direct that unless otherwise herein provided, all trust funds and legacies under this my last will and testament which shall lapse or become void on account of death or otherwise, shall revert to and become a part of my residuum of my estate.

"Sixty-Fourth.-I hereby direct that none of the legacies included herein, either as to principal, or income, shall be assignable in any way whatsoever, and I further direct that all legacies included herein, unless otherwise herein specifically specified shall become payable five years (5) from the date of my decease."

[1, 2] In construing wills, it is a well-established rule that the intent of the testator must govern. Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487; In re Bump's Will, 234 N. Y. 60, 136 N. E. 295. In Tilden v. Green, supra, the court said:

"At the threshold of every suit for the construction of a will lies the rule that the court must give such construction to its provisions as will effectuate the general intent of the testator as expressed in the whole instrument.”

It is therefore our duty to search out and ascertain, if possible, the testamentary intent, and when this is accomplished apply the law and determine whether the testamentary scheme violates the law, and, if it

(202 N.Y.S.) does not, carry it into effect; but, if it is contrary to law, then we should eliminate the unlawful parts and give effect to the provisions that are lawful if by so doing the general testamentary scheme can be preserved, rather than demolish the whole structure, resulting in intestacy. Harrison v. Harrison, 36 N. Y. 543; Henderson v. Henderson, 113 N. Y. 1, 20 N. E. 814. In Harrison v. Harrison, supra, the rule is stated thus :

"The principle is now well settled that the courts lean in favor of the preservation of all such valid parts of a will as can be separated from those that are invalid, without defeating the general intent of the testator."

What was the intent of the testator when he made his will? What did he have in mind, and what did he endeavor to accomplish? When the decedent finished the sixty-second clause (residuary), he had made a complete disposition of his entire estate, named the beneficiaries, and specified how much each was to receive. He seemed to experience no difficulty in saying who were the objects of his bounty and how he wished his estate divided. In many instances he gave the reason for certain bequests.

[3,4] It is urged that the testator, by the sixty-fourth paragraph, cut down most of the gifts, including trusts, in the first 61 provisions, 'created an estate for years (5 years), and increased the residuary estate disposed of in the sixty-second paragraph, resulting in the income from such bequests going to the residue for the period of five years following the death of the testator, thereby reducing such bequests and adding the amount thus subtracted to the residuary estate. In support of this contention, no effort is made to sustain the first clause of this paragraph, but it is claimed that the last clause is valid, if considered independently, and that the clauses are separable; that it is by virtue of the last part of the paragraph that the gifts are curtailed.

In Remsen on the Preparation and Contest of Wills, the author says at page 157, § 9:

"The gift of an estate for years is usually the gift of a use limited by a fixed term. No particular form of words is necessary to create this estate, but the intention should clearly appear. It may be created by a devise to hold for a definite time after the testator's death."

It is also claimed that the first clause of the sixty-fourth paragraph should be treated as an expression of a wish, but that the second clause postponing payment should be given effect; that there is no express direction for the accumulation of income, but as the income from the various legacies---especially those given in trust-is undisposed of during the five-year term, it must necessarily accumulate during said period; that such accumulation is void, and that the income passes to the residuary estate by virtue of the sixty-third paragraph, instead of going to the next eventual estate, under section 63 of the Real Property Law (as amended by Laws 1916, c. 364).

The application of the theories thus advanced, if having the effect claimed, would materially reduce a substantial portion of the testator's gifts, and, to the extent of such reduction, nullify his wishes as expressed in his will. Whenever the testator intended any part of his estate should go to the residue, he was careful to so state; such pro

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