Opinion
May 4, 1910.
Adolph Rebadow, for the appellants.
Thomas R. Stone, for the respondents.
The action is for the construction of the 2d clause of the last will and testament of Gayer Gardner, deceased, who lived in the town of East Hamburg, Erie county, in this State. The question presented is whether he gave to his nephew, Harry R. Williams, and his niece, Lillie M. Beckwith, each an undivided two-eighths of his property not otherwise specifically disposed of, or only an undivided two-eighths to them jointly. The clause, so far as material to the questions under consideration, reads as follows:
" Second. I give, devise and bequeath to Rebecca J. Gardner, my sister, Alice M. Hopkins, niece, F. Gardner Behrends and George T. Jones, nephews, all of the City of Buffalo, Erie County, New York, to each, the undivided one-eighth of all my real estate and personal property wherever the same may be except as heremafter mentioned; to Harry R. Williams, of the City of Buffalo, Erie County, New York, my nephew, and Lillie M. Beckwith, my niece, of the City of Brooklyn, New York, the undivided two-eighths of all of my real estate and personal property wherever the same may be except as hereinafter mentioned, to wit: * * *." All of the next of kin and heirs at law of the testator are named and provided for in the will.
If only an undivided two-eighths is given to the nephew, Harry R. Williams, and the niece, Lillie M. Beckwith, there remains undisposed of an undivided two-eighths of the residuum of the estate, which the heirs and next of kin of the testator will take under the intestate laws, in addition to what is willed to them. While, of course, the testator could dispose of only a part of his estate by will, leaving the remainder to pass to the persons entitled thereto under the intestate laws of the State, the rule is well settled that such a construction of a will is not favored. Generally, where a person makes a will, he intends to dispose of his entire property, and the law so presumes. ( Vernon v. Vernon, 53 N.Y. 351; Schult v. Moll, 132 id. 122, 127; Meeks v. Meeks, 161 id. 66.)
I think the testator intended to dispose of all his property by his will; that he intended to give to his sister and to his niece and two nephews first therein named each an undivided one-eighth, and to his nephew, Harry R. Williams, and his niece, Lillie M. Beckwith, lastly therein named, each an undivided two-eighths of the residue of his entire property, not otherwise disposed of by his will. While the words "to each" immediately following the names of the persons to whom concededly an undivided one-eighth is given are not actually repeated after the names of the nephew and niece last named, I think that is a fair interpretation of the provision. Such a construction is not ungrammatical and does no violence to legal rules for construing wills, but is quite in harmony therewith. As is said in Matter of Miner ( 146 N.Y. 121, 131): "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.) 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.) 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. Davies, 92 N.Y. 199.)" Applying this rule, it seems reasonably clear that the testator disposed of all of his property, and that he gave to the nephew and niece last named in the 2d provision an undivided two-eighths each of the residue of his property not otherwise disposed of by said will.
The judgment dismissing the complaint should, therefore, be reversed, and, as it seems to me, judgment directed construing the will as above stated. A majority of the court, however, are of the opinion that a new trial should be granted.
All concurred.
Judgment reversed and new trial ordered, with costs to appellants to abide event, payable out of the estate.