In re the Accounting of National Bank of Westchester , 29 Misc. 2d 472 ( 1961 )

John J. Dillon, S.

The decedent died a resident of Westchester County on .October 15,1954 leaving a will and six codicils which were admitted to probate pursuant to a decree of this court dated October 27, 1954. This is an executor’s final accounting proceeding in which the court is requested to determine whether a legacy contained in Article “ third ” of the third codicil was intended by the testator to be in substitution of, or in addition to a legacy contained in Article “ fifteenth ” of the will. The language to be construed is as follows:

“ fifteenth: I give and bequeath to olive barkett, who has been in the employ of my household for. many years, the sum of One Thousand Five Hundred ($1,500.00) Dollars.

• “ third (of Codicil): Because of the untiring care and attention given me through the many periods of my illness, I wish to make it possible for my faithful friend, olive barkett, to have a home of her own. In the event that I have not provided such a home for her before my death, I give and bequeath to her the sum of Ten Thousand ($10,000.00) Dollars.”

The decedent did not provide a home for the beneficiary during his lifetime. As in all construction proceedings, the primary objective of the court is to ascertain and give effect to the intention of the testator. (Matter of Buechner, 226 N. Y. 440.) Where the legacies are contained in. separate instruments, as in the instant case, it is presumed that the testator intended the second gift to be cumulative rather than in substitution of the first gift. (De Witt v. Yates, 10 Johns. 156.) Moreover, this presumption is not overcome by the fact that the latter bequest is greater than the former one. (Southgate v. Continental Trust Co., 74 App. Div. 150, affd. 176 N. Y. 588.) There is nothing contained in any of the testamentary instruments to overcome the presumption and therefore the court determines that the testator intended the second legacy to be cumulative.

Under all the circumstances the petitioner will be relieved from publishing the book referred to by the testator in Article “ second ” of his third codicil and will be permitted to abandon as worthless those items which are listed in Article “ eleventh ” of the petition.