| N.Y. App. Div. | Feb 10, 1911
Lead Opinion
Jacob Eidtj Jr., was engaged in the hay and grain business in the city of New York. He had been ill for ten or twelve days, and was taken to Flower Hospital on March 23,1908, for medical treatment. About eleven o’clock in the evening, while lying on the operating table and evidently realizing the gravity of the approaching operation, he dictated his will to his brother, John C. Eidt, which the latter wrote upon the back of a hospital form, he having no prior experience in the drawing of wills. The writing took about half an hour, and some four hours thereafter the testator died. The instrument drawn under these conditions was as follows :
. “ New York, March 23d, 1908.
“ I hereby make my last Will and Testament leaving two thirds of my share in the business Hay & Grain situated at 305 E 45 St. N. Y. City to John C. Eidt and one third of business to my wife Margaret Eidt the business to continue for two years or less before a settlement can be made my wife to drawn one third Interest and John C. Eidt to draw two thirds from same I leave to my wife the house and all furnishings at No. 326 E. 43 St for the rest of her natural life the Interest in the real estate held by me and my brother John 0. Eidt to be held together for two years or less, in case of death of my wife within two years or date of settlement one third Interest to go to Mrs. Anna Deibel I appoint my Executors John C. Eidt James A. Sinsabaugh, Margaret Eidt
/ JACOB EIDT, Jr.
“ J. B. Gregg Curtis, Jr.
“ J. Q. Adams
“ Flower Hospital.”
This will was duly admitted to probate as a will of real and personal property by the surrogate of New York county June 9, 1908. The testator left him surviving no issue or descendants, but a widow, Margaret Eidt; a mother, Christine Eidt; three brothers, John C. Eidt, Charles W. Eidt and Christian Eidt; and two sisters,
The question presented by this appeal is whether the construction of this will by the learned court at Special Term was correct, that under it the fee of the realty held in common with his brother was devised to his widow.
In endeavoring to construe this will, the circumstances under which it was drawn arid executed must be taken into consideration, as well as the absence of experience upon the part of either the testator or the scrivener. Testator was about to undergo a grave operation, from which recovery was problematical. . His brother wrote as he dictated, without either knowledge or appreciation of legal forms. ' As was said in Central Trust Co. v. Eggleston (185 N.Y. 23" court="NY" date_filed="1906-04-24" href="https://app.midpage.ai/document/central-trust-co-v--egleston-3587361?utm_source=webapp" opinion_id="3587361">185 N. Y. 23): “ Each will must be read and considered with reference to its peculiar provisions and to the circumstances attendant upon . its making, and precedents are, rarely, of avail.” So read, we find here a will which by its express terms disposes absolutely of but one item of decedent’s estate — the interest in his business — forming less than one-third of his total estate. This provision for his widow and brother is coupled with a provision to prevent loss to his estate or embarrassment to his partner, by which the business was to be carried on “ for two years or less before a settlement can be made,” his brother arid widow to draw two-tliirds and one-third of the profits respectively until the business was wound up and the proceeds divided between them in the same proportion. The other personalty owned by him, aggregating nearly $7,000, it is con
This is. not the case which frequently arises of an obvious effort by testator to dispose of all his property which is in danger of failing for some ambiguity or. defect in the- language used, nor is it one where the presumption attaches that the testator intended to dispose .of all his'property, (Byrnes v. Baer, 86 N.Y. 210" court="NY" date_filed="1881-10-04" href="https://app.midpage.ai/document/byrnes-v--baer-3631745?utm_source=webapp" opinion_id="3631745">86 N. Y. 210.) Nor is there any general purpose indicated to provide liberally for his. wife, which calls for a liberal construction in her favor. (Moffett v. Elmendorf, 152 N.Y. 475" court="NY" date_filed="1897-04-20" href="https://app.midpage.ai/document/moffett-v--elmendorf-3578532?utm_source=webapp" opinion_id="3578532">152 N. Y. 475.) Applying the rule that “in the construction of a testamentary disposition, where the language is unskillful; or inaccurate, but the intent can be clearly collected from the writing, it is the duty of the court to give- effect to that intent,' subject only to the proviso that no' rule of law is thereby violated ” (Masterson v. Townshend, 123 N.Y. 458" court="NY" date_filed="1890-12-02" href="https://app.midpage.ai/document/masterson-v--townshend-3612675?utm_source=webapp" opinion_id="3612675">123 N. Y. 458), the only fair construction to be placed upon the will is as fol-ldws : The testator left to his brother and widow- his interest in the hay-and grain business in the proportion Of two-thirds and one-third, and until such time ■ as the estate could be settled up, which he fixed at a period. of two years or less (he evidently having some idea that two years was about the time required to settle an estate), the profits of the business were to be divided in the samé proportion; -he left his residence with its furnishings to his- widow for life, and made no dispo-
The situation here presented is that described in Schouler on Wills (1910 ed. p. 285): “ But after all the indulgence, all the favorable regard possible, after all the comparison of words and phrases; after the long search by the light of extrinsic testimony to discover in the gift a certain .and sensible meaning, the court may still be left in impervious darkness, and the will must fail, of effect in consequence,”
The judgment appealed from should, therefore, be reversed and judgment directed to be entered in accordance with the views hereinbefore set forth, with costs to the appellants tó be paid out of, the estate.
Ingraham, P. J., and McLaughlin, J., concurred; Scott, J., dissented.
Concurrence Opinion
I concur in the result to which the majority opinion leads, but I reach it on a different theory. I agree with Mr. Justice Dowling that no interest in the premises in question, which were owned by the testator and by the plaintiff as tenants in common, was devised to the wife of the testator. I am of opinion, however, that he intended to devise one-third of his interest therein to his mother-in-law in the event that his wife died before the settlement to which he referred, or within the period specified if the settlement was not made within that time, and since she did not, the mother-in-law takes nothing under the will; and.this is of no practical consequence. It is evident, I think, that the testator- knew that he was not disposing of all of his property. The fair inference is that being pressed for ■time he intended that the will should only relate to the .disposition-of that part of his estate which he desired to devise and dis. tribute in a manner different from that provided by the statutes of the State, and that he left his other property, both real and personal, to descend and be distributed as intestate property. Viewed
He intended to devise one-third of something to his mother-in-law, and that devise, in my opinion, relates immediately and directly to the premises in question, and I think it relates to nothing else.
Dissenting Opinion
I am unable to'agree that the will in question is so-obscure as to leave the court in “impervious-darkness ” as to the testator’s intention respecting his share of the real estate held by himself and his brother John.
It is perfectly clear that he meant to make some disposition of that interest. Otherwise he would not have mentioned it. It is .also -clear that his predominant idea in making a will was to designate. what portion of his property should go to his widow. As to what was not to go to her he was silent, leaving its distribution to be regulated by the law., He mentioned only three items.of property ; his interest in the business which he gave to his brother and partner and to his wife.; his house, in which he gave his wife a life interest, and his real estate owned in common with his brother. Unless he meant to dispose of this last property, there is no reason, why he should have mentioned it at all, and unless hemeanttogive it to his wife, the -reference to it was meaningless. I have no doubt at all that what he intended was to give his wife the liouse-for life, and the other real estate absolutely, and this intention would have been expressed beyond doubt if the .obviously illiterate scriverier had inserted the conjunction “and ” after the gift of a life interest in the house so that- the clause would have read : “ I leave to my wife the house and all furnishings, at Ho- 326 E. 43 St for the rest of her natural life and the Interest in the real estate held by. me and my brother John 0. Eidt to be held together for two years or. less.” • Such an interpolation, in order to effect what seems to have been the obvious intent of the testator, is.'fully authorized by precedent.- (Starr v. Starr, 132 N. Y. 154, and cases cited at p; 158.)
•The judgment should be affirmed.
Judgment reversed and judgment directed as stated in opinion, with costs to appellants payable out of the estate. Settle order on ■ notice. . .