202 N.Y. 476 | NY | 1911
This is an action in partition, and the plaintiff's right to maintain it depends upon the question whether one Joseph H. Hasselbrook, who died seized of the real property sought to be partitioned, left a valid will disposing of the same, or whether he died intestate. If Hasselbrook died intestate, then the plaintiff, as the only child of Hasselbrook's deceased daughter, is entitled to an undivided one-fourth part of the real property in suit; and if, on the contrary, Hasselbrook left a valid will which disposed of this real property, it is conceded that he devised it all to his own three surviving children. A short statement of the facts disclosed by the record will show how the question arises.
John H. Hasselbrook died in 1905 in the borough of Brooklyn, city of New York, leaving an estate consisting of some money on deposit in a savings bank and *479 two parcels of land known as Nos. 60 and 62 Franklin street in that borough. He left a writing purporting to be his last will and testament, evidently holographic, in which he directed, "First. After all my lawful debts are paid, all funeral and testamentary expenses, I give, devise and bequeath unto my living son and daughters Charles Hasselbrook, Martha Ellen Nordbruch and Senie Meyer, share and share alike, the same to be equal divided between themselves. Second. All real Estat if any owned by me and the same canot be sold at a fair market price then same sall be sold at public oction." The careful reader of these material provisions of this instrument will at once perceive the question which they present. What did the intending testator bequeath or devise? There is no mention or description of property except in the second paragraph which contains the direction for a sale of the real estate. The children of Hasselbrook, acting upon the assumption that the instrument was a valid will under which they became seized of their father's estate, procured the paper to be admitted to probate as a will, and then sold to the defendant Reisman the premises described in the complaint. Later this action was brought, obviously upon the theory that Hasselbrook died intestate and that the plaintiff, his grandson, is entitled to an undivided one-fourth of the real estate above mentioned. The courts below have upheld the contention of the defendants but we feel constrained to take a different view. We think the defendants Hasselbrook, Nordbruch and Meyer took nothing as devisees and that they must stand upon their rights as heirs at law of their father. This gives them each an undivided one-fourth of the estate and the remaining one-fourth goes to the plaintiff.
The making of a will naturally imports an intention to make a testamentary disposition of property. But the intention is one thing and its execution is quite another thing. While courts have great latitude in giving effect *480
to imperfectly expressed testamentary intentions, they have no right to make wills for testators. Although a will need not be framed in any particular or set phrase, it must at least be so plain as to furnish some tangible clue to the testator's intention. In cases where the language of wills have been inexact or ambiguous the courts have frequently transposed or inserted words or phrases, or even left out or inserted provisions in order to effectuate an intent that was with reasonable certainty to be gathered from the context of the whole instruments. (Phillips v. Davies,
We think the case at bar is not to be distinguished in principle from the case of Brown v. Quintard (
The judgment should be reversed and a new trial ordered, with costs to abide the event.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, HISCOCK and COLLIN, JJ., concur.
Judgment reversed, etc.