[225 N. Y.] Opinion, per HISCOCK, Ch. J. [Jan., extinct, for the purpose of securing a legacy vesting and becoming payable some time after the corporate death of the legatee. The case of Matter of Bergdorf (206 N. Y. 309) has been cited with apparent confidence as sustaining the views which have led to the judgment thus far rendered. A reasonably careful consideration of that case, however, seems to make it plain that, so far as applicable, its authority and reasoning are entirely opposed to rather than in support of the judgment which has been rendered herein. In that case the Morton Trust Company was merged with the Guaranty Trust Company under provisions of the Banking Law which, amongst other things, provided that upon such a merger all the rights, franchises and interests of the corporation merging should be deemed to be transferred to and vested in the corporation into which it was merged. Under the will there involved the Morton Trust Company had been appointed an executor and the question was whether the right to this executorship passed to the Guaranty Trust Company into which the Morton Trust Company had been merged. In that case the statute authorizing such a merger and providing for the transfer of rights, privileges and property above referred to had existed for many years and the merger itself took place a year before the testator died and his will went. into effect. Under these circumstances it was held by the court, concurring in the opinion of Judge COLLIN, that the Morton Trust Company did not continue to exist within or as a part of the Guaranty Trust Company and the two were not identical; that as a legal being, a corporate entity, the Morton Trust Company retained the one activity and power provided by the statute of suing and being sued and that otherwise it was non-existent, and certainly if that was true in that case it is true in this case where by action under the statute the Washington Heights Library has absolutely surrendered its charter 1919.] Opinion, per HISCOCK, Ch. J. [225 N. Y.] and ceased to exist. Judge COLLIN then, however, pointed out that the right to make testamentary disposition was not an inherent one but was conferred by statute and subject to regulation, and that, therefore, "It was within the power of the legislature to enact that a trust company, into which another trust company lawfully designated as an executor had been merged subsequent to the making and prior to the probate of the will, should be the transferee of the privilege or right of being the executor." (p. 316.) And throughout the opinion holding that the Guaranty Trust Company was entitled to take and administer the executorship which had originally been conferred upon the Morton Trust Company there is emphasized the fact that the statute permitting this was passed and the merger itself accomplished before the will went into effect and that the testator in making his will and enjoying the testamentary privileges conferred by the statute did so subject to the statutory provisions then under consideration. That controlling feature is lacking in this case. The general statute providing for the consolidation of library corporations as it existed at the time testator died and the substance of which has been quoted, did not authorize what has been done. Support for the judgment which has been rendered can only be sought for in the act taking effect after the probate of the will and whereby the attempt is made to substitute a new legatee in the place of the one who has been named by the testator. I now come to the remaining question which arises whether the lapsed legacy intended for the Washington Heights Library falls into the residuum of the third residuary portion which we have been considering and passes under the residuary clause applicable to that portion, to the appellant Knickerbocker Hospital, or whether it becomes property as to which the testator has died intestate and which should pass to his heirs and next [225 N. Y.] Opinion, per HISCOCK, Ch. J. [Jan., of kin. In the latter case of course the appellant can gain no advantage from the lapse of the legacy. It is the familiar rule that a general residuary clause will include and be applicable to lapsed legacies. This rule also governs devises of real estate which fail. So anxious is the law to avoid intestacy that where the language of a residuary clause is ambiguous the courts will give it a broad rather than a restricted interpretation so as to include such legacies. (Lamb v. Lamb, 131 N. Y. 227, 234.) While, however, this is the general rule in respect of residuary clauses it is not the rule in respect of a residuary clause where the legacy which has failed and lapsed was intended to be a disposition of part of the residue. In such a case, on failure of the intended legacy of part of the residuum, the part as to which disposition has failed will go as in case of intestacy and the residuum passing under the residuary clause will not be augmented by a "residue of a residue." The reason for this distinction in most cases is not very apparent, satisfactory or convincing. The one most often given is based on the assumption that it could not have been the intent of the testator in disposing of his residuary estate that a bequest of the residue thereof should be augmented by the lapse of other bequests from such residuum. (2 Redfield on Wills [2d ed.], 118, 119.) While this course of reasoning has some apparent force where the residuum. consists of a definite sum or specific property and where it might be assumed that the testator by the residuary clause intended to make a definite bequest, it is difficult to appreciate the force of the reason in such a case as the present one where the residuum to be disposed of consists of a certain portion of an estate of unknown value and where there seems to be no good ground for withholding application to the residuary clause and lapsed legacy of the principles ordinarily covering such 1919.] Opinion, per HISCOCK, Ch. J. [225 N. Y.] a situation. However, without attempting to justify this distinction as logical or reasonable in most cases we nevertheless are forced to realize that as the result of inheritance and frequent repetition the rule has become too firmly established to be disregarded. (Redfield on Wills [2d ed.], vol. 2, pp. 117, 119; Thompson on Wills, § 308; Page v. Leapingwell, 18 Ves. 463, 465; Wright v. Weston, 26 Beav. 429; Lloyd v. Lloyd, 4 Beav. 231; Green v. Pertwee, 5 Hare's Ch. 249; Stetson v. Eastman, 84 Me. 366; Floyd v. Barker, 1 Paige, 480, 482; Beekman v. Bonsor, 23 N. Y. 298, 312; Kerr v. Dougherty, 79 N. Y. 327, 346, 347; Hard v. Ashley, 117 N. Y. 606, 616; Booth v. Baptist Church, 126 N. Y. 215, 245; Morton v. Woodbury, 153 N. Y. 243, 253; Matter of Hoffman, 201 N. Y. 247, 254; Matter of Woolley, 78 App. Div. 224.) We see no escape from it as applied to the lapsed legacy which we have been considering. Under it, the appellant has no right to the legacy or to object to the receipt of it by the respondent even though the latter is not entitled thereto. The ones to object were the heirs and next of kin of the testator. Apparently they are satisfied; at least they are not here appealing. We think that the judgment must be affirmed, with costs. CHASE, COLLIN, CUDDEBACK, POUND and ANDREWS, JJ., concur; CARDOZO, J., concurs in result. Judgment affirmed. [225 N. Y.] Statement of case. [Jan., MERRITT HULL, Appellant, v. JOHN HULL, JR., Individually and as Executor of JOHN HULL, SR., Deceased, et al., Respondents, Impleaded with Anoth r. Pleading — assignment of interest in estate delivery to executor in escrow complaint alleging that executor wrongfully filed such assignment states cause of action - when failure of assignor to raise question upon judicial settlement a bar to the action— demurrers to such defense and to counterclaims when overruled - plaintiff permitted to withdraw demurrers. 1. The complaint alleges that plaintiff, at the request of a brother who was executor of their father's will, assigned to two other brothers all of his interest in his father's estate upon the understanding and agreement that the assignment was not to have a legal inception until such time as plaintiff should direct a delivery of the same to the assignees; that in violation of such terms, without notice to or knowledge of plaintiff, the executor filed the same together with his final account as executor in Surrogate's Court and claimed that a portion of the payments made by him to the two assignees was made pursuant to the assignment. On demurrer, held, that although insufficient to support a charge of fraud or to justify cancellation of the instrument, the pleading states facts sufficient to constitute a cause of action against the executor. 66 2. Under section 2472a of the Code of Civil Procedure (in effect May 5, 1914), enlarging the jurisdiction of a Surrogate's Court, it was clothed with jurisdiction upon a judicial settlement of the accounts of an executor 'to ascertain the title to any legacy or distributive share" and " to exercise all other power legal or equitable necessary to the complete disposition of the matter." Hence, upon the judicial settlement of the accounts of the executor, the plaintiff, having been made a party thereto, was at liberty to file objections to the account presented by the executor and contest the validity of any payments made by him under or by reason of the assignment in question and to assert title in himself to the legacy and to have the question of title to the same determined in that proceeding, and where he omitted to assert his legal rights upon such settlement, the decree of the Surrogate's Court thereon is conclusive evidence against him that the items allowed to the executor for moneys paid to legatees were correct and a defense setting up the decree made on the judicial settlement |