Opinion
July, 1902.
Howard McWilliams, for executor.
James W. and Charles J. McDermott, for contestant.
The will of the testatrix contained the following clause: " First: After all my lawful debts are paid and discharged, I give and bequeath to my ever beloved son Edward Copeland, all of my estate, both real and personal, of whatever kind or nature of which I may die seized and possessed, but out of this inheritance he is desired by his mother to pay as soon after as possible that it comes into his ownership Five hundred dollars ($500) to her grandniece, the daughter of William P. Clark, of Newburgh, Orange County, State of New York, now known as Ellie Clark, recognizing in this form the kindness bestowed upon your mother in her youth by her brother, the grandfather of said Ellie Clark, known as Philip Clark in years that are gone, same state, town and county as his son William P. Clark."
The person named Ellie Clark, referred to in the above paragraph of this will, objects to the statement, contained in the account, that this clause was practically null and void and that the only legatee mentioned in the will was Edward Copeland, the said Ellie Clark contending that the above language should be construed as precatory words of devise. While the words "give, devise and bequeath," are the usual words used in wills, yet they are not essential to the validity of a gift, and if it appears that it was the intention of the testator to have the property go to the person named as legatee, even if the words "wish or desire" are used, then the intention of the testator will be followed out.
An important case on this subject is that of Clay v. Wood, 153 N.Y. 134. In that case it was held that the wishes, as expressed by the testator, did not control, but, it will be noticed, in that case the wish referred to disposition which it was expected the legatee named in the will should make of the property upon the death of the legatee, and that, consequently, the legatee named in the will was merely the recipient of a trust estate.
In Phillips v. Phillips, 112 N.Y. 197, it was stated that if the intention to construe or direct a certain disposition of the real estate is deducible that then the word "wish" will be construed as imperative, and will imply a direction by which the executor of a will and the courts are to be bound.
I think that the plain intention in this case, although there was only the word "desired" used shows an intention to make this a gift.
The testator had given everything that she had, after the payment of her debts, to her son, and stated however that she desired that as soon as possible that Five hundred dollars should be paid to the person named, Ellie Clark, and stated that she did this for the purpose of "recognizing in this form the kindness bestowed upon your mother in her youth."
There is no doubt therefore but that the testator firmly believed when she made this will that she was making an effectual provision, by which the person toward whom she was kindly disposed would receive the contemplated gift, and this case is also free from any of the questions as to whether any trust is created, which arises in the cases quoted by the executor in his brief.
It therefore seems to me that the objection of Ellie S. Clark to the statements contained in the account of the executor is well taken, and that the decree should provide for the payment to said Ellie S. Clark of the legacy given her by the deceased.
Decreed accordingly.