Opinion
November 7, 1949.
Appeal from Surrogate's Court, Kings County.
Decree, insofar as appealed from, reversed on the law, with costs, payable out of the estate of Euretta J. Schlegel, deceased, to all parties filing briefs, and matter remitted to the Surrogate's Court for the making of a new decree providing for payment to appellants of the full sum of $35,000, with available balance of trust fund to be paid to the residuary estate. The sixth paragraph of the will creates a $60,000 trust fund, and provides that upon the death of the life beneficiary of the income thereof, the sum of $35,000 be paid to appointed children, and makes a further direction "to add the remaining twenty-five thousand dollars of said principal sum to my residuary estate." Appellants, the appointed children, are named remaindermen to take $35,000. The Trustees of Columbia University are not named in the sixth paragraph to take the remaining $25,000. There is not even a naming by reference of the Trustees of Columbia University in the sixth paragraph. (Cf. Matter of Reynolds, 242 N.Y. 389.) The Trustees of Columbia University take only as a residuary legatee under the eleventh or residuary paragraph of the will. Under the application to remainders of the settled rule that a residuary legatee is entitled to nothing until all the debts and other legacies are paid ( Matter of Title Guar. Trust Co., 195 N.Y. 339; Matter of Farmers' Loan Trust Co., 186 App. Div. 722, 726, 727, mod. 226 N.Y. 691), appellants are preferred over the residuary legatee, in view of the abatement of the corpus. The will, read in its entirety, does not disclose a contrary intention. Authorities which construe into stated amounts, the "remainder" of corpus to one general legatee after gifts of the corpus in stated amounts to other general legatees ( Matter of Knickerbocker, 255 App. Div. 309, affd. 280 N.Y. 560; Matter of Braker, 171 Misc. 226), are inapplicable. In the instant case payment is preferred to general legatees over a residuary legatee because of the rule giving such preference ( Matter of Title Guar. Trust Co., supra), and not because of failure to fix an amount, which, in fact, is stated to be $25,000. The fact that appreciation of the $60,000 fund would have been shared ratably ( Matter of Low, 232 App. Div. 414, affd. 257 N.Y. 613; Matter of Farrell, 175 Misc. 430), is not material in determining whether appellants are to be preferred in respect of the amount of the stated gift to them in their status as general legatees. Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.