(189 N.Y.S.)

[1, 2] It is the court's duty to examine the will with care, to see whether, by any reasonable construction of which his words are fairly susceptible, it can spell out the intention of the testator. Judge Cardozo, in Matter of Buechner, 226 N. Y. 440, at page 444, 123 Ñ. E. 741, at page 742, in construing a will, says:

"We need no canon of construction to justify that holding, except, indeed, the primary one, to which all others are subordinate, that the intention of the testator is to be sought in all his words, and when, ascertained, is to prevail"— citing Robinson v. Martin, 200 N. Y. 159 (164), 93 N. E. 488; Mullarky v. Sullivan, 136 N. Y. 227-232, 32 N. E. 762.

Words are never to be rejected as meaningless or repugnant, if by any reasonable construction they may be made consistent and significant. Adams v. Massey, 184 N. Y. 62, 69, 76 N. E. 916.

[3] Is there light enough in the will to guide the court in ascertaining the intention and in endeavoring to preserve it? While it is true that courts from an early day have repeatedly upheld devises or bequests by implication, I find that the weight of authority sustains the position that the implication, to be effective, must be supported by some words of gift, and that a gift by implication will not result from words such as found here. Bradhurst v. Field, 135 N. Y. 564, 32 N. E. 113; Smith v. Dugan, 145 App. Div. 877, 130 N. Y. Supp. 649, affirmed 205 N. Y. 556, 98 N. E. 1116. In the instant case the clause contains no words of gift, nor any indication that the testator intended to effect a devise thereby. To hold otherwise would be doing violence to the language of the will. This point is not tenable.

[4] As to the question of partial intestacy, the respondents urge that the second paragraph, which may be called the residuary clause, is broad and ample, under the rule laid down in Floyd v. Carow, 88 N. Y. 561, to carry all of the property owned by the decedent at his death. The intention to include is presumed, and an intention to exclude must appear from other parts of the will, or the residuary devisee will take.. [5-8] Upon a reading of the whole will it is not clear to my mind that the testator had the intention of making the respondents his general residuary beneficiaries. It is the court's judgment that his intention was to make them beneficiaries of a particular residue, although not defined in the second paragraph of the will, but which may be identified by reference to the context of the whole will. The intention of the testator must govern, and all the technical rules of construction must yield. The fundamental rule of construction relating to intestacy. must give way to testator's intention. Matter of James, 146 N. Y. 78, 40 N. E. 786, 48 Am. St. Rep. 774; Matter of Disney, 190 N. Y. 128, 82 N. E. 1093. What was the intention of the testator, and can that intention be sufficiently declared from the language of the will? However strict the technical rule of construction may be that the legacy will be deemed general, rather than specific, it must yield to the one which is the foundation of all interpretations of wills, that the intention of the testator must govern. Cramer v. Cramer, 35 Misc. Rep. 17, 71 N. Y. Supp. 60. The rule of presumption against intestacy is not a controlling guide to testator's intention. Raymond v. George, Junior, Re

public Ass'n, 82 Misc. Rep. 507, 513, 144 N. Y. Supp. 98, and cases cited. Where the presumption against partial intestacy is in conflict with the presumption against disherison (Close v. Farmers' Loan & Trust Co., 195 N. Y. 92, 100, 87 N. E. 1005), the weaker must prevail. As stated by Haight, J., the rule to the effect that the testator did not intend to die intestate "has many exceptions and is only occasionally followed." Matter of Disney, supra; Matter of Werlich, 230 N. Y. 516, 520, 130 N. E. 632.

[9] I believe it is manifest from the expressed words of the will that a gift of the residue is confined to the residue of a particular fund, and the effect of the first paragraph is to limit the second paragraph; that the words used in the first paragraph show a clear intention to exclude such portion of his property as came to him from his brother's estate, through his daughter, Hattie Hunt. Cases are numerous which sustain the doctrine that, where the language of the will giving the residue is confined to a particular fund, or to a certain residuum, it will be restricted accordingly. The general rule that the residuary bequest carries everything with it is subject to some qualifications and its exceptions. Ommanney v. Butcher, Turn. & Russ. 266; Riker v. Cornwell, 113 N. Y. 124, 20 N. E. 602; Morton v. Woodbury, 153 N. Y. 243, 47 N. E. 283; Kerr v. Dougherty, 79 N. Y. 327; Toerge v. Toerge, 9 App. Div. 194, 41 N. Y. Supp. 244; Floyd v. Carow, 88 N. Y. 561; Jarman on Wills, p. 726; Matter of Benson, 96 N. Y. 499, at page 508, 48 Am. Rep. 646; Decker v. Hoag, 101 Misc. Rep. 474, 478, 168 N. Y. Supp. 199. While the language of the second provision does not dispose of all the rest, residue, and remainder of the estate, the words used are of sufficient import to carry all his estate, unless limited by other provisions of the will.

The first provision of the will of Daniel Hunt speaks entirely of the property in which he enjoyed a life estate. Apparently he did not know that he had acquired a one-fifth interest therein as the result of the death of his daughter, Hattie Hunt, because the paragraph states that his grandchildren will be each entitled to one-fourth of the property devised and bequeathed by the will of his brother. He settled in his mind the fact that each grandchild would enjoy one-fourth part of an estate worth in all about $75,000. Then he makes the formal statement that his two sons are living and working with him and helped him "to accumulate my property," and further states, because of the fact that the grandchildren would inherit each one-fourth part of the property in which he had a life estate, that he has omitted to "further provide" for them. Daniel Hunt made more than a bare recital. He made an explanation. In the first paragraph he refers entirely to the life estate, and, when he disposes of that to his satisfaction, he proceeds to take up in the second paragraph, and make disposition of his own property, property acquired by his own efforts and exertions in his lifetime with the aid of his two sons. He treated the life estate property as distinct and apart from his own acquired property. The two sons did not help him acquire the one-fifth interest in his brother's estate, which he had inherited from his daughter Hattie. Therefore a fair reading of the first paragraph of his will causes the second

(189 N.Y.S.)

clause to create a special residue of so much of his estate as he acquired in his own lifetime.

The authority strongly relied on by respondents is Smith v. Dugan, 145 App. Div. 877, 130 N. Y. Supp. 649, affirmed without opinion 205 N. Y. 556, 98 N. E. 1116. That case is clearly distinguishable from the one at bar, as will be seen from the reading of the wills in question. If the Court fails to convince upon this point, then it must meet reversal. In Smith v. Dugan, Andrew Smith died without issue, and it was claimed that, although he took a vested remainder, of which he was apparently ignorant, the recital in the will excluded the two houses and lots from the residuary clause, but the court held otherwise. In that case the reference to the prior gift from the father was simply a bare recital. Andrew Smith could not have known at the time of the making of his will that at the time of his death he would have no children. Any recital or statement before the happening of the event of his death would obviously be of no consequence. There was no sufficient statement, nor inference to be drawn, excluding the real estate from the residuary estate. His recital does not include an explanation.

In the instant case, we have more than a bare recital. Daniel Hunt states the effect of his brother's will, and then he designates the beneficiaries by name, and their precise interests, and, because they will take such an interest and are provided for, he makes no "further provision" for them. This paragraph deals entirely with the property constituting the Harrison Hunt estate, and no other property, and disposes of it once and for all, as Daniel Hunt thought, although perhaps mistakenly. He treats it apart from his property, as though it were a duty for him to do so. He gives as a reason for giving his own property to his two sons that they helped him to accumulate it; but they did not help him to accumulate the one-fifth interest of Harrison Hunt's property. The first paragraph is my warrant for my interpretation of the intention of the will maker. In its entire thought we find the purpose to do justice to all the objects of his bounty. The reference to the interest he thought would pass to the grandchildren under his brother's will leads to the conclusion that he thought such an interest was ample for them, and he thought such interest to be each one-fourth part. He had concern for the issue of his blood, and it is fair to believe that he would have made different provision for them, were they not secure in his brother's inheritance. In fact, he says so, because he makes no "further provision" for them. Having made reference to his brother's gifts, he turns to a full disposition of the property he acquired by his own labors.

Therefore I conclude that the second paragraph of the decedent's will created and dealt with a particular residue, namely, all of the property of Daniel Hunt, exclusive of any interest accumulated and acquired by him in his lifetime, and the intention to do so appears from the other parts of the will; that he died intestate as to the one-fifth interest in his brother's estate, so that it passed to one of the petitioners herein, Raymond Francis Chandler, and the decedent's two sons, Hobart P. Hunt and Harrison G. Hunt, each acquiring one-third interest therein. The grandson, John Albert Bell, Jr., predeceased Daniel

Hunt, and therefore his father, John Albert Bell, acquired no interest in any part of the estate of the late Harrison Hunt, deceased. Such an interpretation of the will, judged by the testator's own words, would be both natural and consistent with his desires and his life relations with his grandchildren.

(115 Misc. Rep. 577)

1. Wills

In re KELSEY'S ESTATE.

(Surrogate's Court, New York County. June 9, 1921.)

858 (1)-Fund to which testatrix's estate entitled under will of deceased husband passes under residuary clause of her will.

Where testatrix's estate became entitled to a certain fund under the will of her deceased husband, she did not die intestate as to that fund, it passing under the residuary clause of her will.

2. Wills 545 (4)-Construed to vest no remainder in child of testatrix dying before death of life tenant.

Under a will bequeathing the net income of testatrix's residuary estate to the use of a son during his life, the principal, in case of his death without children surviving him, to be divided equally among her other children, "if then living," the children of any such child dying before the death of the life tenant to take the share to which their parent would have been entitled, if living, testatrix's children surviving the life tenant, who died without children, took the whole fund in equal shares and no remainder vested in a child of testatrix who died without issue prior to the death of the life tenant.

3. Wills 455-Where intention of testator clear, no technical rules of construction permitted to alter or defeat it.

Where the intent of the testator, as ascertained from the words used, is clear and explicit, no technical rules of construction must be permitted to alter or defeat it.

In the matter of the estate of Helen E. Kelsey. Proceeding for accounting. Decree for distribution of fund.

Wellman, Smyth & Scofield and Geller, Rolston & Blanc, all of New York City, for trustees and administrators c. t. a.

Charles C. Sanders, of New York City (Edward J. McGuire, of New York City, of counsel), for Nellie Kelsey.

FOLEY, S. [1] The construction of the will becomes necessary upon this accounting. By my decision in the Matter of Charles Kelsey, 184 N. Y. Supp. 67, the estate of this testatrix (his widow) became entitled to a certain fund. At the outset I hold that the testatrix did not die intestate as to that fund, but that it passed under the residuary clause of her will. Floyd v. Carow, 88 N. Y. 560; Matter of Miner, 146 N. Y. 121, 40 N. E. 788; Lamb v. Lamb, 131 N. Y. 227, 30 N. E. 133.

[2, 3] Testatrix left her surviving four children, Anna, Helen, Charles, and Oscar. The residuary clause in her will provided:

"To my executors hereinafter named I give and bequeath and devise all-the rest residue and remainder of my estate real and personal whatsoever and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

wheresoever.

(189 N.Y.S.)

And to apply the net income arising from all the rest of said residue and remainder of said proceeds to the use of my son Oscar during his natural life and the principal thereof to be equally divided among his children at and upon his decease, should he leave children surviving him, but in case of his death without leaving surviving him any children such last mentioned principal shall be divided equally among my other children Charles, Anna and Helen, if then living and if any of them shall then be dead the children of such deceased child shall together take the share to which their parent would have been entitled if living."

The son Charles predeceased Oscar, without issue, and at the time of Oscar's death, Anna and Helen were living. The executrix of Charles claims one-third of the fund upon the theory that the remainder vested in him at the death of the testatrix. An alternative claim is made by her to one-twelfth of the fund, on the theory that the will did not dispose effectively of the one-third of the remainder bequeathed to Charles, that the testatrix died intestate as to such one-third, and thereby Charles, as one of her next of kin, became entitled to that share. The controlling language of this paragraph is the phrase "if then living." It fixed the persons who were to take upon the death of Oscar, the life tenant. The intent of the testatrix is clear and explicit and no citation of rules of construction must be permitted to alter or defeat it.

The testatrix provided in effect that Helen, Charles, or Anna must survive at the date of death of Oscar in order to take. A substitutional gift was provided, in case of the death of either before Oscar, in favor of the children of such deceased child. The survivors took the whole fund in equal shares. By giving the entire remainder to the children. surviving at the death of Oscar, she excluded any child who predeceased him. The situation here is similar to that in Matter of Buechner. 226 N. Y. 440, 123 N. E. 741, where the word "living" was used to define persons who would take upon the happening of the determining event-the death of the life tenant. Cardozo, J. (226 N. Y. at page 444, 123 N. E. 742), pointed out that there is no need to resort to technical rules of construction to ascertain beneficiaries "when the testator has defined the membership himself."

"We need no canon of construction to justify that holding, except, indeed, the primary one, to which all others are subordinate, that the intention of the testator is to be sought in all his words, and, when ascertained, is to prevail. Robinson v. Martin, 200 N. Y. 159, 164; Mullarky v. Sullivan, 136 N. Y. 227, 230, 232."

1

See, also, Matter of Baer, 147 N. Y. 348; Metropolitan Trust Co. v. Krans, 186 App. Div: 368, 174 N. Y. Supp. 541; Matter of Crane, 164 N. Y. 71; Schwartz v. Rehfuss, 129 App. Div. 630, 114 N. Y. Supp. 92, affirmed 198 N. Y. 585, 92 N. E. 1101; Lyons v. Ostrander, 167 N. Y. 135, 138, 60 N. E. 334.

The construction adopted by me was also accepted by Mr. Justice Delehanty (Kelsey v. Barbey, Kelsey v. Gibson, N. Y. Law Journal, July 1, 1915), in actions brought in the Supreme Court, New York County, by the widow of Charles Kelsey, involving other funds passing under the same clause, against the remaindermen, Anna Kelsey Barbey and the estate of Helen Gibson. The various cases cited by counsel