#### Matter of the Judicial Settlement of the Accounts of John D. Teller, as Surviving Executor of Martin L. Walley, Deceased.

(Surrogate’s Court, Cayuga County,

February, 1912.)

Wills — Disposal by will — Interpretation and construction — Expressions calling for construction — Ordinary and special limited or technical meanings of words.

It is a rule of construction that the words and phrases- in a last will and testament are to be taken in tlieir plain, usual and primary sense unless a clear intention to use them in another sense can be ascertained' from the instrument.

Where the son and one daughter of a testator of long business experience are his ■ residuary legatees and devisees’ and the personal estate is insufficient to pay in full a pecuniary legacy to an*593other daughter, a bequest to each of the residuary legatees of an equal undivided one-half of the testator’s share and interest in the stock and goods in a certain store and in the good-will of the business therein conducted by a firm of which he had been a member does not include the amount of the debts due the firm at the time of the testator’s death.

That an absolute devise in equal shares of certain real estate to the residuary devisees is by a later clause-of the will qualified by giving one of them, the daughter, the use of the premises for one year after testator's death “ without charge ” does not relieve her from liability to pay current taxes.

Pbooeedikgs upon the judicial settlement of the account of an executor.

T. M. Hunt, for executor.

Turner *&*Kerr, for Mary L. Bowers and others.

Woonisr, S.

Upon the judicial settlement of the accounts of the executor of the above named decedent, the question is presented as to whether or not the bequest in the will to decedent’s daughter Mary L. Bower of an “ equal undivided one-half of my share and interest in the stock of goods in said store, No. *117*Genesee street, and in the good-will of the general drug business therein conducted ” carries with it accounts receivable of the firm (of which decedent was a member), including as well an indebtedness owing by the decedent to the firm at the time of his death.

A similar bequest is made to the decedent’s son, Martin L. Walley, Jr. These two legatees are also the residuary legatees and devisees in the will; and the interpretation to be placed upon the clause referred to becomes' important, solely because of the fact that there is not sufficient personal property to pay in full a general legacy of $5,000 given to the decedent’s daughter Alice L. Hutchinson, and the amount to be paid on this legacy will be increased or diminished according to the construction placed upon said clause.

It is urged that the testator intended to transfer to the two children referred to, in equal shares, his entire interest in the drug business of the firm, including all indebtedness *594owing the firm. The intention of the testator must be gathered from the will itself, where there is no ambiguity and the language is plain. It is a rule of construction that words and phrases in general are. to be taken in their plain, usual and primary sense, unless a clear intention to use them in another sense can be ascertained from the instrument.

After carefully reading over the will, I am unable to spell out any intention on the part of the testator to enlarg’d the ordinary meaning of the terms used. The expression *“*stock of goods ” cannot be claimed to include accounts receivable, cash or other evidence of debt; and the phrase “ good-will ” has never been construed to mean anything except what the name purports. The good-will of a commercial partnership is an asset of the firm, separate and distinct from its stock of goods, capital or other assets, and consists of the advantage or benefit which inures to the firm beyond the mere value of its physical property, in consequence of the general public patronage which it receives from constant or habitual customers, on account of its location, reputation, etc.

If the contention of the beneficiary under this clause is correct, the bequest would also, on the same reasoning, include firm cash on hand or other firm assets. Whereas, if the testator meant to transfer to the beneficiary named just his interest in the stock of goods and in the good-will of the business and no more, he could not have expressed it more clearly.

The testator was a business man of long experience, familiar with business terms and expressions; and, if he had intended .to transfer his entire interest or share in the business, including cash, accounts receivable, etc., it is reasonable to suppose he would have done so in appropriate language. By transferring, to his son and daughter his interest in the stock of goods and good-will of the business, he placed them in a position to continue the business with the surviving partners, if agreeable, leaving his interest in the surplus in the firm’s assets to be applied by his executors to the other purposes of- the will.

’The indebtedness owing by the testator to the firm at the time of his death would; theoretically, be collected in by the *595surviving partners, together with other accounts receivable; and, after the discharge of the firm’s indebtedness, one-thir-d of the surplus would then be paid to the executors. It seems to me that this view is sustained in Matter of Long Island Loan & Trust Co., 92 App. Div. 5, where it was held that debts for legal services would not pass under a clause of the will, “• I give and bequeath to my son Dwight all my law business, law books, papers, safe, bookcases and office furniture,' and all property pertaining to my business.”

Another question presented arises from the construction to be placed upon the clause giving the use of the premises *No. 177*Genesee street *to*said Mary L. Bower for the term of one year after the testator’s death without charge. It is claimed by her that the expression “ without charge ” relieves her from the liability to pay -current taxes. In an earlier, part of the will the-testator devises this property outright, in equal shares, to his two children, said Mary L. Bower and said Martin L. Walley, Jr., and then later qualifies it by the clause referred to.

The usual rule is that the tenant for years or for life must pay the current taxes and the remaindermen or the estate of the decedent cannot be burdened with the payment of the same unless such an intent is clearly and unequivocally expressed in the will.

It does not appear to me that the expression “ without charge ” imposes the liability on the decedent’s estate to pay the-taxes. If it did, it would also include every other expense incident to maintaining the property, such as water taxes, Hushing taxes^ necessary repairs, etc.

A fair construction of this clause would be that the testator, after having devised the property outright to his son and daughter in equal shares, intended to further provide for his daughter by giving her the use of the property for one year, without being charged for the same or béing accountable either to the estate or the other devisee for the use thereof.' •

Whatever may be the equities between the two devisees, it is not competent for the surrogate to determine, but I should *596hold that there is no obligation imposed upon the executor to pay taxes on this property out of any funds in his hands belonging to said estate.

A decree may be entered judicially settling the account in accordance with the above conclusions.

Decreed accordingly.