In re Miner's Will

• Decision Date: 21 May 1895
• Citation: 146 N.Y. 121,40 N.E. 788
• Parties: In re MINER'S WILL.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 121

40 N.E. 788

In re MINER'S WILL.

Court of Appeals of New York.

May 21, 1895.

Appeal from supreme court, general term, Fifth department.

Appeal by the next of kin of Asher W. Miner, deceased, from a judgment ordered by the general term of the supreme court (25 N. Y. Supp. 537), and which affirmed so much of the decree of the surrogate as determined that the said deceased did not die intestate as to the general residue of his estate, and that said residue was given by said will to the respondents. Affirmed.

James C. Smith and Charles B. Wheeler, for appellants.

Charles Daniels, for respondents.

GRAY, J.

The will of the deceased was written by himself, and made the following provisions: First. He gave to his wife, in lieu of dower and all claims by her as widow, absolutely, the sum of $20,000, and also, during her life, the use of similar sum and the use of all lands owned by him in the town of Friendship. He gave to her all his ‘household goods, furniture, and fixtures, and effects, and all his horses, harnesses, carriages, robes, and cutters.’ Second. He gave to each of these respondents the sum of $10,000, less any indebtedness or notes held against them. Third. He gave to a niece the interest on $4,000 during her life. Fourth. He gave to a church the sum of $3,000, with directions as to its investment and use, and providing that, if the church should be without a pastor for the term of 22 months, the sum given should ‘revert to and be a part of his residuary estate.’ In the fifth, sixth, seventh, eighth, ninth, and tenth clauses he made bequests for educational and charitable objects. In the eleventh clause certain specific articles were bequeathed. In the twelfth clause he directed his executors to sell and convey any and all of his real estate, not otherwise disposed of, and to convert the same into personal estate; and he instructed them, in the event of the bequest before mentioned to the church failing, that it should become a part of his residuary estate. In the thirteenth clause he directed that, ‘after the aforementioned payments shall be made out of the avails of my real and personal estate, the balance shall form a part of my residuary estate.’ The fourteenth clause reads as follows: ‘All the rest and residue of my estate both real and personal not heretofore disposed of I give, bequeath and devise as follows: all of my household goods, furniture and effects after the decease of myself and wife to Kate M. Wellman, Myra E. Corbin and Ella Lockwood to be equally divided between them share and share alike.’ It is contended on the part of the appellants, who are next of kin to the testator, that he died intestate as to the general residue of his estate; while, on the other hand, the respondents, who are the three persons named in the residuary clause of the will, claim that its provisions give to them whatever belongs to the residuary estate.

The peculiarity of the fourteenth, or residuary, clause, which creates the difficulty in this case, is that the general gift of the residuary estate, with which the clause commences, has an appearance of being restricted and narrowed, so as to limit the interest of the persons named therein to the testator's ‘household goods, furniture, and effects.’ It is argued that the effect of writing in, after the general gift of the residuary estate, these words, viz. ‘as follows: all my household goods, furniture and effects after the decease of myself and wife to Kate M. Wellman,’ etc., was to convert the residuary gift into a specific one of the particular property mentioned. The appellants say that the words of this clause, which precede the enumeration of the testator's household goods, furniture, and effects, do not amount to a gift, as no donee is named in them, and that they are not connected with, but are separate from, the names of the three persons below, by the expression ‘as follows,’ and the other intervening words, and, that being the case, the name of a donee cannot be supplied by parol. The result is, according to their argument, that, while the opening words of the clause express an intention to proceed to give the residuary estate, the intention is unexecuted, except by what follows, and that which follows is a specific gift of the remainder in the household goods, etc., expectant on the death of the testator's wife.

It cannot be disputed but that the testator, in undertaking to draw his own will, has expressed himself in the residuary clause, which, in view of the large estate of which he died seised, was the most important one in his will, in very inartificial and inapt language. I think that this is a case where the intention of the testator to effectually dispose of his residuary estate has very nearly failed of expression; but, with all the difficulties in the way, I think that the language of the clause is adequate to support the construction, which finds the necessary expression of the intention. If some effort is necessary to that end, it is one which it is the duty of the court to make, rather than to permit the result of a substantial intestacy. When we consider carefully the general plan of this will and the circumstances under which it was made, I think we can readily reach the conclusion that it is a case, not where the intention is really unexpressed, nor one where we have to add words to the will or to supply its omissions in order to find the intention expressed, but one where the words of gift in the residuary clause were merely inaptly used, or, rather, unfortunately arranged by the testator, and that we should be doing no violence to the rules of law or of language if we give that effect to the residuary clause which the court gave below. If we can see that the inapt or careless use of language by the testator has created the difficulty in ascertaining his intention, but, nevertheless, feel certain as to what he meant, from reading the whose instrument in connection with the clause in question, we may subordinate the language to that meaning. I fully agree with the proposition advanced for the appellants by their able counsel that we must gather the intention of the testator from the words he has used, and that it must not be a matter of conjecture or speculation on the part of the court. If it were not possible, in the will before us, to reach, with a certainty of conviction, the real intention of the testator, and to find it actually expressed, I could not advise the affirmance of this judgment. But I think the testator has said enough to indicate his intention with respect to his residuary estate and its disposition by gift to the persons named. Unless a residuary bequest is circumscribed by clear expressions and the title of a residuary legatee is narrowed by words of unmistakable import, it will be construed to perform the office that it was intended for, viz. the disposition of all the testator's estate which remains after effectuating the previous provisions in the will, or which may be added to by lapses, invalid dispositions, or other accident. Riker v. Cornwell, 113 N. Y. 115, 20 N. E. 602. The rule of construction requires of the court in dealing with the language of a residuary gift which is ambiguous that it should lean in favor of a broad rather than of a restricted construction; for thereby ‘intestacy is prevented, which, it is reasonable to suppose, testators do not contemplate.’ Lamb v. Lamb, 131 N. Y. 227, 30 N. E. 133. In performing the office of construction, and in order that an apparent intention of the testator shall not be rendered abortive by his inapt use of language, the court may reject words and limitations, supply them, or transpose them, to get at the correct meaning. Phillips v....