In re the Accounting of Poughkeepsie Trust Co. , 5 Misc. 2d 954 ( 1957 )

W. Vincent Grady, S.

A petition having been filed with this court by the Poughkeepsie Trust Co., as executor of the will of the above-named decedent praying for the final judicial settlement of its accounts as such, and requesting that the court construe paragraph “SECOND” of said will which states: “ I give and bequeath to my friend, Austin McEntee, now residing at 9 Case Court, in the City of Poughkeepsie, Dutchess County, New York, my Chevrolet automobile. If at the time of my death, I no longer own such Chevrolet automobile, then I give and bequeath to him the sum of Five Hundred Dollars ($500.00).” And the executor having appeared by Drake & Drake, Esqs., with Albert J. Drake, Esq., of counsel, of Poughkeepsie, New York, and after hearing argument on behalf of the executor, and there being no other appearances, and after having had due deliberation thereon, the court decides and finds as follows:

It appears from the petition filed for judicial settlement under paragraph numbered VI, that the decedent at the time of drawing his will on March 22, 1955 owned a 1951 Chevrolet automobile, and that prior to his death, he sold said automobile and purchased a 1956 Chevrolet automobile which was one of his personal assets at the time of his decease.

The sole question to be determined by the court is whether under the will of decedent, he intended Austin McEntee to receive the Chevrolet automobile he owned when he made his will, or the Chevrolet automobile that he owned at the time of his death.

The general rule is that a will speaks as of the date of death, but, from the ordinary use of the word “ such ”, meaning “ before mentioned,” the court concludes that testator intended to give Mr. McEntee that particular automobile owned by him at the time of drawing his will, or in the event that he sold the same, then Mr. McEntee was to get the sum of $500, and the court so construes the intent of testator.