Opinion
January 12, 1956
Benjamin P. Roosa for executor, petitioner.
William F. Darby for Ernest E. Burleigh, objectant.
Objection has been made to certain items in the final account of the executor herein, by Ernest E. Burleigh, a legatee and brother of the deceased. The objectant also prays for a construction of paragraph numbered "Third" of decedent's last will and testament.
The decedent, Harry E. Burleigh, by paragraph "Third" provided: "I give and bequeath to my brother, Ernest E. Burleigh, all money payable to my estate from the Veterans Administration and held back from pension payments."
It appears that prior to his death, testator made application to the Veterans Administration to withdraw the total amount that was being withheld by it from pension payments, and also prior to his death, testator received a check in the sum of $1,656, in full settlement of his claim.
However, testator passed away on April 20, 1952, before depositing or cashing said check, so received from the Veterans Administration.
Objectant claims that the proceeds of this check belong to him pursuant to said paragraph "Third" of testator's will.
It is the opinion of this court that the failure of testator to cash or deposit the check so received, prior to his death, is not the controlling factor but rather, "what was testator's intent as expressed by his Will and by his subsequent action in regard to the specific bequest to his brother?"
The court will try to preserve the paramount intention of testator and that construction will be given which most closely carries into effect his general purpose and scheme.
It certainly is clear from reading paragraph "Third" that testator intended to leave his brother all that was due him from the Veterans Administration at the time of his death, but testator's subsequent withdrawal of this specific fund indicates a change of intent.
The check from the Veterans Administration was rightfully deposited in the estate account by the executor and the objectant receives nothing under the provisions of paragraph numbered "Third."
Submit decree accordingly.