In re the Estate of Flagg , 10 N.Y. St. Rep. 694 ( 1887 )

Rollins, S.

The disposition of this decedent’s estate is directed by two testamentary papers—a will proper and a codicil thereto. The earier of these instruments contains, among other things, the provisions following:

First. A bequest to the husband of the testatrix of certain jewelry and wearing apparel.

Second. A bequest thus worded: “I give to my said husband the sum of $1,700 absolutely This sum he gave to me, and I do not consider it a part of my estate, I also give to my said husband the sum of $2,000 absolutely.”

Third. A bequest in its fourth article of the sum of $8,000 dollars to “its executors ” in trust for the following use and purpose: “That they shall loan out or invest the same and collect and receive the interest and income thereof, and shall, from time to time, as said interest and income shall be received, pay all of said interest and income to my said husband James H. Flagg, so long as he shall live. Upon his death I give said principal sum to my child or children, and lawful issue of deceased child or children of mine living at the decease of my said husband,” etc., etc.

The will further directs, by its sixth article, that in the event that the husband of the testatrix shall be living at the time when her son Herbert shall attain his majority, her executors shall take the sum of $10,000 from out of the share of the principal of her estate then held in trust by them for her child’s benefit, and shall invest the same, and collect and receive the interest thereof, and pay all of said interest and income semi-annually to her husband as long as he shall live. The principal sum of $10,000 is given upon the death of the husband to the child or children, and the lawful issue of any deceased child or children of the testatrix who shall be then living.

The codicil to this will contains a provision which is the subject of the present controversy. It is as follows:

“ I hereby revoke any bequest of money, or interest of ■money, made in my last will and testament to my husband James H. Flagg, excepting the interest at six per cent of $10,000 during his life time, and the sum of $2,000 which, as I have stated in my will, I consider a gift from him, and, therefore, do not include in my estate. ”

I am satisfied that it was the intention of the testatrix, in using the words following the word “excepting,” to take out of the operation of the revocation provision, and to sanction anew as effective dispositions, two of the gifts which she understood to have been bequeathed by her will. Neither of these gifts is described in the codicil with absolute precision, but I cannot doubt that in using the words, “interest at six per cent of $10,000 during his lifetime,” she intended to refer to the bequest of “the interest and income of $10,000,” which the will gives her husband in case he shall be living when her son Herbert comes of ■age.

The codicil does ’not undertake to revoke all the provisions of the will for Mr. Flagg’s benefit. It revokes all except the above indicated and the one which bequeaths the legacy of $2,000.

The contention that the language in dispute was intended to operate as. a revocation in toto., and that the words following the word “ excepting ” are effective as a new and substantial bequest, seems to me utterly untenable.

Although the guardian of the infant gave security upon his appointment and qualification in Kings county, he must execute and deposit a bond, in pursuance of section 2746 of the Code of Civil Procedure, before he can obtain possession of his ward’s estate. Reick v. Fish, 1 Dem., 75.