In re the Estate of Clarke , 120 Misc. 530 ( 1923 )

O’Brien, S.

A construction is requested of the following language in paragraphs “ fifth ” and “ sixth ” of the will, respectively: “Fifth. I direct my executor hereinafter named, or the legal representative of my estate to set apart out of my estate securities sufficient to produce an annual income of four hundred dollars ($400), or say the equivalent of ten thousand dollars ($10,000) in cash, invested in good securities at four per cent.

“ Sixth. I direct my executor hereinafter named, or my legal representative, to set apart out of my estate securities sufficient to produce an annual income of sixteen hundred dollars ($1,600) per year, or say the equivalent of about forty thousand dollars ($40,000) or over, in cash, invested in good securities at four per cent.”

The paragraphs which the court is called upon to construe are perplexing when one seeks to determine the real purpose of the testator. Impressive arguments may be made in favor of the construction of said" paragraphs that he intended to provide simply for the respective annual incomes of $400 and $1,600, without regard to the actual value of the securities which, at four per cent, would produce said sums; while, on the other hand, convincing reasons are deducible from an analysis of the whole instrument, and particularly from a study of the paragraphs in question, in favor of the interpretation that the testator intended to make certain provisions for two fixed funds of $10,000 and $40,000 respectively, which, at four per cent, would produce the incomes referred to.

After careful consideration the court is compelled to adopt the latter construction.

Decreed accordingly.