Opinion
February, 1922.
Davies, Auerbach Cornell ( Alexander J. Field, of counsel), for executor.
Spencer, Ordway Wierum ( Otto C. Wierum, of counsel), for Charles F. Cartledge.
Edward J. Dowling, special guardian.
On this accounting, the brother of testatrix claims under paragraph 2 of the will to be entitled to 340 shares of the stock of the Cartledge Realty Company, valued at $24,480, owned by the testatrix at the time of her death. That paragraph of the will reads as follows: "In consideration of his kindness and brotherly assistance, I give, devise and bequeath to my beloved brother Charles F. Cartledge, of New York City, New York, all real estate owned by me on Long Island, New York and in Brooklyn, New York. * * *" He has also filed a claim against the estate for money loaned testatrix. The claim with interest amounted to $11,901.87 at the time of her death.
The facts are stipulated. The decedent owned no real estate on Long Island or in Brooklyn, either at the date of her death or at the date of the execution of her will on May 18, 1918. Prior to April 11, 1912, the decedent, her brother and three sisters were owners as tenants in common of certain real estate on Long Island and in Brooklyn. On that date, the Cartledge Realty Company was incorporated with a capital stock of 1,700 shares. The decedent received 340 shares, her one-fifth part, after a conveyance of the property by the tenants in common to the corporation. The Cartledge Realty Company did not earn sufficient income to meet taxes and other expenses and the several stockholders loaned the necessary money to the corporation. Up to and including January 7, 1919, the pro rata share of the decedent in these loans was $9,800, and this sum was advanced to her by her brother, Charles F. Cartledge.
The extrinsic evidence offered by both sides is admissible. Matter of Manning, 196 A.D. 575; affd., 232 N.Y. 512. The deposition of George M. Martin must also be admitted and considered. Matter of Coughlin, 171 A.D. 662; affd., 220 N.Y. 681. This evidence clearly explains the nature of the legacy the testatrix attempted to give her brother. What she intended to bequeath was the stock of the realty corporation which she owned, not to devise realty which she did not own. It is the substance of the attempted gift with which we are chiefly concerned, not the words in which it was attempted to be given. Matter of Manning, supra.
In a letter written by decedent on November 18, 1913, she referred to her real estate holdings in the following manner: "This real estate, what I have in the Cartledge Realty Co., I am going to leave to you anyway. I mean, whether the property sells while I live or not. I feel that I owe you it for the kindness of the present time, when I so much need all I have." The testatrix also described the advancements as "assessments" and the same term is used in the written agreement subsequently executed on December 1, 1913. A copy of the agreement is annexed to the stipulated facts, and is part of the extrinsic evidence which must be considered. By the terms of this agreement, which was under seal, the stock was pledged by the testatrix as collateral for loans made and to be made by her brother. The agreement also provided that if the loans were not repaid at the time of her death the pledged stock was to belong to Charles F. Cartledge. The latter does not assign any reason for the invalidity of the agreement. He merely objects to its admission and consideration. The agreement I hold to be valid ( Ga Nun v. Palmer, 216 N.Y. 603; Winne v. Winne, 166 id. 263), and to have vested the stock in Charles F. Cartledge on the death of the testatrix. The brother must be held to his own obligation, and the transfer at death effectuated by the agreement was of the shares, subject to the lien, and in extinguishment of the claim for the money advanced. His title, therefore, was not enlarged or diminished by the probate of the will. At most it was merely confirmed. The will must, therefore, be construed as an attempted ratification, in a sense, of the written agreement of the parties that the stock was to be the property of the brother at her death, in payment of the "assessments" advanced by him.
In view of the foregoing this claim must be denied.
Claim denied.