Genet v. Beekman , 27 Barb. 371 ( 1858 )

Sutherland, J.

I think the learned judge at special term attached too limited a meaning to the words “ share of my estate, &c.” as used in the codicil of the will. I think the testator intended by the codicil to devise to the trustees the whole share or portion of his estate given by the will directly to his son Gerard, as well the $10,000 legacy, as his share of the plate, household goods, &o. and of the residuary estate.

The value of the residuary estate is not alleged in the complaint. It is not even alleged in the complaint that there was any residuary estate. The principal object in making the codicil appears to have been to place the testator’s son Gerard’s share of his estate in the hands of trustees, so that the rents, issues and profits thereof could be applied to his support and maintenance, free and clear of omy debts “ then by him owing or thereafter to be contracted,” &c. The words of the codicil, “ I give, devise and bequeath all that certain portion of my estate, real and personal, mentioned and described in my said last will and testament, as the share of my estate intended thereby to be devised and bequeathed to my son Gerard,” &c. are certainly broad enough to carry the $10,000 legacy &c., as well as the share of the residuary estate; and it would seem to be inconsistent with the principal apparent object of the testator in making the codicil at all, to give those words a construction which would leave the $10,000 to be seized for his son’s debts.

[New York General Term, May 3, 1858.

Davies, Sutherland and Ingraham, Justices.]

It does not appear that the sum of $20,000, given hy the will to the two sons, to he divided equally between them, was a particular fund set apart for them, hut that it was to come out of the hulk of the estate.

■The intention of the testator by his codicil should he carried out, so far as the law will permit it to he carried out.

The judgment of the special term for the plaintiff on the demurrer should be reversed, and the defendants have judgment on the demurrer with costs.

Davies, P. J., concurred.

Ingraham, J. I retain the opinion expressed hy me at special term, and dissent from the conclusions at which my brethren have arrived.

Judgment reversed.