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and 140 New York State Reporter The $15,000 mortgage now covering the Downing and Forty-Ninth street properties is a valid incumbrance, but, as it was created for the purpose of the Forty-Ninth street property, the amount thereof should be satisfied out of the property which received the entire benefit of it. The right of Thomas Senior to retain the Putnam county homestead is not disputed by any of the heirs or devisees, who are the only persons having an interest therein, and his acceptance of the same will be deemed to be in satisfaction of the provision made for his support. Those who acquired title under the Stillwell judgment obtained an interest in certain designated parcels of property, but not in the entire estate. They therefore have no interest in the homestead property. Ordered accordingly.

(54 Misc. Rep. 459.)

BANKERS' TRUST CO. V. DIETZ et al.

(Supreme Court, Special Term, New York County. May, 1907.) WILLS-CONSTRUCTION-CHARGE ON REALTY.

Testator bequeathed $5,000 to be paid to the legatee as soon after his decease as possible, pending the payment the legatee to receive interest thereon from the trustee under the will. By a residuary clause, he left the remainder of his property in trust in one part of which the legatee had a contingent remainder. Held, that where the testator gave the ex. ecutor no power of sale, and in the absence of circumstances justifying the conclusion that the legacy was to be charged on the real estate, the court will not find such intention.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 49, Wills, $ 2115.)

Action by the Bankers' Trust Company, trustee of William Henry White, against Frederick Dietz and others for partition. Exceptions to report of referee. Report modified.

White & Case, for plaintiff.
Joseph M. Hartfield, for Bankers' Trust Company and others.
Daniel Nason, for Ethelinda Dietz and others.

Quigg, Bostwick & Coleman, for Howard J. Dietz and Susie M. Dietz.

Fritz W. Hoeninghaus, guardian ad litem, for Robert E. Dietz and Ethelinda S. Dietz.

Leonard Hull Smith, guardian ad litem, for Marian Louise Dennison.

Frank W. Arnold, guardian ad litem, for Kenneth Tarbox and Russell Tarbox.

Edward E. Crittenden, referee.

LEVENTRITT, J. This is an action in partition. The issues were referred, and a motion is now made to confirm the referee's report. Upon exceptions filed, the only question presented is whether the defendant Ethelinda Dietz has any interest in the real property sought to be partitioned. This defendant claims under the will of William Henry White, deceased, which, after making provision for the payment of debts and funeral expenses and the distribution of various articles of household and other effects, contains the following clause:

“Third: I give and bequeath unto Miss Ethelinda Dietz, first cousin of my deceased wife, now residing in Albany, N. Y., the sum of five thousand dollars, the same to be paid to her as soon after my decease as possible in the judgment of my said trustee, and pending the payment to her of said sum she shall receive from my said trustee interest thereon at and after the rate of six per cent."

This is followed by a residuary clause, wherein all the residue of the testator's property “real, personal and mixed” is left in trust to be divided into three parts, in one of which Ethelinda Dietz has a contingent remainder.

Upon the reference the parties stipulated that the account of the administratrix showed that so much of the personalty of the estate of William Henry White as had been reduced to the possession of the administratrix was insufficient to pay the decedent's debts. It was further stipulated that the question whether or not this defendant was entitled to a lien on the real property involved should be determined as a question of law upon the pleadings and the will, "without respect to whether the personal property which may hereafter be reduced to possession by the administratrix will be sufficient or insufficient to pay the balance of the debts and Miss Dietz's gift.” In other words, the determination of the question depends upon a construction of the will without recourse to facts aliunde the will.

The referee has found and reported that the defendant Ethelinda Dietz has a lien on the real property which is the subject of this action to the extent of the $5,000 bequeathed under the third clause of the will. I do not concur in that conclusion. The bequest to this defendant was in the form of a general legacy. It is settled beyond question in this state that such legacies are payable primarily out of personalty, and cannot be charged upon lands included in a residuary clause, in the absence of express direction or manifest intention in the will or proof of extrinsic circumstances justifying the conclusion that the testator intended them to be so charged. Irwin v. Teller, 188 N. Y. 25, 80 N. E. 376; Brill v. Wright, 112 N. Y. 129, 19 N. E. 628, 8 Am. St. Rep. 717; Wiltsie v. Shaw, 100 N. Y. 191, 3 N. E. 331; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480. Here the will is relied on as establishing such an intention. There is no direction in the will that this legacy shall be a charge on the realty or that it shall be payable out of the trust fund. It is contended, however, that the direction to the trustee to pay “as soon as possible,” with the further direction for payment of interest, makes the gift not a legacy, but rather a charge upon the residuary trust estate. This contention begs the question, but is not justified by the language of the will. The mere direction to the trustee to pay, without naming the residuary trust as the fund out of which payment shall be made or making that fund subject to such payment, is insufficient to make the bequest a charge upon the trust estate, or to change its character as a general legacy. Nor does the use of the word “trustee,” in the direction to pay or the allowance of interest on the legacy, indicate an intention to make the bequest a charge upon the real estate. The testator used the terms “executor" and “trustee" synonymously. He referred to the same person; and it could not be seriously urged that the direction to the trustee to pay

106 N.Y.S.-3

and 140 New York State Reporter the legacy prohibited its payment by the executor. The allowance of interest has no bearing upon the question of the testator's intention. Neither the executor nor the trustee is vested by the testator with power of sale, which fact alone tends to negative a constructive intention to charge the realty with the defendant's legacy. Furthermore, the devise under the residuary clause of a contingent interest in a portion of the trust estate to this defendant points conclusively to the fact that the testator recognized the distinction between a general legacy and a bequest chargeable upon the trust.

This case presents a situation coming within the rule expressed in Brill v. Wright, supra, where the court, by Andrews, J., say:

"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 rule in this state that the language of the will alone unaided by extrinsic circumstances is insufficient to charge legacies upon lands included in the residuary devise."

This rule is sanctioned and applied in a long line of decisions, the most recent of which is Irwin v. Teller, 188 N. Y. 25, 80 N. E. 376.

The determination of this question rests, as I have stated, solely upon a construction of the will, without reference to facts aliunde; and I fail to find anywhere in the instrument a direction express or implied, or even a permissive intention, that the general legacy of Ethelinda Dietz shall be charged against the testator's real property devised under the residuary clause.

It follows, therefore, that this defendant has no interest in or lien upon the premises under partition, and that the referee's report must be modified accordingly. Ordered accordingly.

(54 Misc. Rep. 474.)

SHAYNE et al. V. SHAYNE et al. (Supreme Court, Trial Term, New York County. May, 1907.) 1. WILLS-PROBATE-SETTING ASIDE.

The probate of a will, will be set aside only where there is substantial proof of mental incapacity of the testator, or the exercise of undue influence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, & 916.) 2. SAME-EVIDENCE.

In an action under Code Civ. Proc. & 2653a, to set aside a decree of the probate, plaintiff must overcome the prima facie presumption of due execution and validity of the codicil by a preponderance of evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 916.) 3. SAME-COMPETENCY OF TESTATOR-QUESTION FOR JURY.

In proceedings to set aside the probate of a codicil the question as to whether testator was of sound mind will not be submitted to the jury, unless the evidence tends to show that he did not have sufficient mental capacity to comprehend the condition of his property-to remember his relations, and to understand the scope of the codicil.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, $ 768.]

Action by Mary Shayne and others against Margaret A. Shayne and others. Motion by defendant for direction of verdict granted.

Olcott, Gruber, Bonynge & McManus (William M. K. Olcott and Clarence E. Lexow, of counsel), for plaintiffs.

Joseph N. Tuttle (Charles O. Maas, of counsel), for executors of Chi topher Shayne, Edward Nolan, John T. Shayne, Raymond Greenless, Clifford Greenless, and Percy Greenless.

Cleveland & Cleveland (Charles D. Cleveland, of counsel), for guardian ad litem of Christopher C. Shayne, Nellie Shayne, and Margaret Shayne.

BRUCE, J. The evidence shows that the codicil, to determine the validity of which this action is brought, has been admitted to probate by the Surrogate's Court of this county, In this action, therefore, which is brought under section 2653a of the Code of Civil Procedure, the codicil and the decree constitute prima facie evidence of its due attestation, execution, and validity, and cast upon the plaintiffs the burden of overcoming this presumption by a preponderance of evidence. They are bounden, under the issues raised by the pleadings, to establish against this presumption the fact either, first, that this codicil was not executed and attested in accordance with the requirements of law; or, second, that, at the time this codicil was executed, the testator was under the undue influence of his wife, the defendant Margaret A. Shayne, and that, therefore, the codicil does not express the testator's free will and desire; and third, that at the time the testator executed the codicil he was of unsound mind.

No evidence has been given tending to support the first proposition. The proof conclusively shows that all the requirements of law were fully complied with. Nor is there any evidence tending to support the second proposition. Undue influence must be established by facts and circumstances. Opportunity is not enough. In Children's Aid Society v. Loveridge, 70 N. Y. 394, the court said that, to warrant the submission of this question to the jury, there must be evidence tending to show that influence was exercised upon the testator which amounted to a moral coercion and which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, and which he was unable to refuse or too weak to resist. It must not be the promptings of affection, the desire of gratifying the wishes of another, or the ties of attachment arising from consanguinity; but a coercion, produced by importunity, or by a silent resistless power which the strong will often exercises over the weak, and which could not be resisted, so that the motive was tantamount to force or fear. Gratitude, love, esteem, or friendship which induces another to make testamentary disposition of property cannot ordinarily be considered as arising from undue influence; and all these motives are allowed to have full scope, without in any way affecting the validity of the act. So also lawful influences, which arise from claims of kindred and family or other intimate personal relations, are proper subjects for consideration in the disposition of estates, and, if allowed to influence a testator in his last will

, cannot be regarded as illegitimate or as furnishing cause for legal condemnation. There is an absolute failure here of any proof tending to establish undue influence.

and 140 New York State Reporter There remains, therefore, only the question: Was the testator of sound mind at the time he executed this codicil? To justify the submission of this question to this jury against the presumption raised by the decree of the surrogate, there must be evidence tending to show that he did not then have sufficient mental capacity to comprehend perfectly the condition of his property, his relation to the persons who were or should or might have been the objects of his bounty, and the scope and bearing of the provisions of this codicil; that he did not then have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other and be able to form · some rational judgment in relation to them. The evidence shows that the testator at the time of the execution of this codicil was a prominent business man in this city; that he died on the 21st day of February, 1906, without issue, or the descendants of any issue, and left surviving a wife to whom he had been married for over 30 years, an aged mother who was dependent upon his bounty, two brothers, and several nieces and nephews. His estate amounted to about $275,000 and was largely invested in a fur business in this city, which he had established many years previous. He owned also, among other property, several farms in Galway, his native town, including the old homestead on which his aged mother lived. On May 23, 1905, he made a will, leaving the old homestead to his aged mother during her life, with remainder in fee over to his niece, and leaving to his mother also during her life the income of $25,000. The remainder of his estate he left to his wife, to have and to enjoy the income thereof during her life, with provision that, upon her death, the estate including these farms should pass to his brother and to various nephews . and nieces. On the 23d of January, 1906, he executed the codicil in issue, by which he gave his entire estate to his wife, expressing therein the wish that she would carry out the provisions of the will of May 23, 1905, although imposing no legal obligation upon her to do so. The evidence shows that he became ill in the spring of 1905, and that, in May of that year, he made a trip to Europe for his health on the advice of his physician, accompanied by his wife, returning about the middle of July. The remainder of the summer he spent in his summer home in Galway, returning to New York in the fall. In January, 1906, two days after the execution of the codicil, he started on his trip through the South, intending to go as far as California, for his health, taking this trip upon the advice of his physician. He stopped en route at Washington, Atlanta, New Orleans, and several other cities and finally reached San Antonio, Tex., where he became worse, and started to return to his home. He stopped at Atlanta, Ga., on his way back, and died there on February 21, 1906. The physician who attended him during the last three days of his illness testified that death was due to fatty degeneration of the heart, coupled with chronic Bright's disease. This physician had never before seen the testator. He testified that this examination, made a few days prior to his death, to wit, on the 19th day of February, 1906, revealed that the Bright's disease was of a chronic nature and that, in his judgment, it must have existed for at least six months. It is conceded

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