Hubbard v. Hubbard

It seems to me that the testator, who drew his own will, has inadvertently or carelessly used the words “ not less ” *277in the third clause of his will instead of “ not more ”or “ within.” He directs his executors to sell all his real estate in Yonkers “ as soon as practicable, not less than eighteen months ” after his death. ■It is evident when the entire will is considered, as well as from the language quoted, that there has been an oversight in the use of the language. It - could hardly be that if the testator desired to have his Yonkers real estate sold “.as soon as practicable” he would intentionally in the same clause prohibit its sale for eighteen months after his death. The phrases are contradictions of each other. The testator in other clauses of his will directs that all his real estate in Cohoes shall he sold within fifteen months after his death and that the proceeds of the sale shall be applied in payment of his debts; and directs that in case such proceeds shall he insufficient to pay his debts in full that the executors may take from the proceeds of the- sale of his .Yonkers real estate a sum sufficient to pay whatever may remain unpaid of his debts after application of the proceeds of the sale of his real estate in Cohoes. His indebtedness was about $5,000.

He had in a'prior clause of his will bequeathed all his personal property to his son, and, therefore, provided for the payment of his debts out of his real estate in the manner stated.

He was a lawyer, and knew that debts should be paid and the estate settled within eighteen months.

There is no devise of the Yonkers real estate to any one; hut in the seventh clause of the will the testator devised the proceeds of the sale thereof to the persons therein named, with the evident intent of carrying into effect the trust agreement of April 30, 1883, in relation to such real estate, to which he was a party. There is no express power contained in the will to the executors or to. any one to receive the rents and profits of this real property during the eighteen months.

I think it clear from the whole context of the will and. the condition of the estate that the words “ not less ” were inadvertently used by the testator instead of the word “ within,” and that the court should so construe it in order to give effect to the intention of the testator, which it seems is apparent from the will as a whole; or that the words “ not less than eighteen months ” should be entirely rejected as not in harmony with the general scheme of the will.

I think that either of these constructions is- justified by the authorities. Phillips v. Davies, 92 N. Y. 200; Horton v. Cantwell, 108 id. 255, 268; Du Bois v. Ray, 35 id. 162; Hall v. *278Thompson, 23 Hun, 334; Carter v. Bloodgood, 3 Sandf. Ch. 295.

I see no reason why effect should not be given to the consent of the parties to this action, that the legacy to the testator’s wife be' .paid, from the proceeds of the sale of the Yonkers property. This -appears to be in harmony with the testator’s intent; nor do I see any reason why the executors should not be named in the decree as trustees as requested in such consent. •

. A decree may be prepared in accordance with this memorandum, and can be settled upon two days’ notice to all parties, at which time the question of costs will be considered. . ■;

Ordered accordingly.