Opinion
March, 1914.
Julius Albers, for executor.
Richards Mott Cahoone (Fredk. H. Chase, of counsel), for Louise Chambaz.
Henry Escher, Jr. (Lawson R. Jones, of counsel), for Samuel D'Yvernois.
Upon this accounting construction is required of the following provision of the will: "I give, devise and bequeath all the remaining of my property either real or personal to my two children (born of a previous marriage contracted in the year one thousand eight hundred and sixty-five in Geneva Switzerland with Louise Victoire Chambaz) being Samuel D'Yvernois and Abrahamine D'Yvernois or if dead to their direct issue evenly and if no issue to either one of them the bequest to be divided equally between their mother if alive et my brother Emile Phillippe D'Yvernois if alive or his issue."
The testator's child Abrahamine was dead at the time when the will was made and has left no issue.
Where in a will the only indication respecting several beneficiaries of a fund is that they are named and are also described by words which, unless qualified, would throw them into a class, the gift must be construed as a personal legacy. Moffett v. Elmendorf, 152 N.Y. 475, and cases cited at pages 484 and 485.
"Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common unless expressly declared to be in joint tenancy (Real Property Law, section 66), which also applies to personal property." Matter of Kimberly, 150 N.Y. 90, 93.
Where in a legacy to more than one person there is no definition of the proportions in which they are to take, they take equally.
The subsequent provisions in the will at bar being substitutionary, it would be intolerable that they should operate only in case of the death of both primary legatees. Rather should they be applied to the death of either of the first named legatees, so that, upon the death of either, the gift over should take effect.
Hence, since Abrahamine died without issue before the execution of the will, the share of the residue which would have been hers, had she survived, is to be divided equally between her mother and the testator's brother.
Decreed accordingly.