100 N.Y.S. 681 | N.Y. App. Div. | 1906
This action is brought for the construction of the will of Nicholas Hannan, deceased. Two questions are presented upon this appeal.
The residuary ¿lause, which we here have to pass upon, is -as follows.: •
“ I further desire that after my' doctor’s bill and funeral expenses are paid, that the remainder left of my money should be paid to the person, man or.woman, that takes care of me in.my last illness and" that will remain with me and prepare me for a Christian death.”
A gift by will to be" valid must be certain on its face.- There must be a designation of a person'or object, with the exception, of charitable trusts, which is sufficiently definite to • enable the court to identify the person or object with .reasonable certainty. As said in Jar man on Wills (Vol. 1 [6th Am. ed.], 354): “ Conjecture is not permitted to supply what the testator has failed to indicate; for as the law has provided a definite successor in the absence of disposition, it Would . be unjust to allow the right of" this ascertained object to be superseded by the claim of anyone not pointed out by the testator with equal distinctness.” “ Evidence'i.s not receivable either for the purpose of broadening or narrowing a description under the guise of explaining it.” (Underh. Wills, § 911.)
Is the residuary legatee in the will before us here indicated with sufficient distinctness to be capable of reasonably certain identification? We think not. The phrases “takes care of me in my last illness” and “remain with mé and prepare me foi* á Christian death,” are too broad for a definite interpretation.. How is it possible to ascertain to whát extent the-testator required personal care from the legatee, or to what extent did he intend that that care might be delegated to others ? Did he intend -the gift of his residuary estate to depend upon actual presence at his deathbed, and, if so, for liow long a time'lief ore? What must one do to “prepare” another for' a Christian death ? The ambiguities are patent.
The uncertainty of the clause is demonstrated by the facts brought out by the examination of plaintiff’s witnesses. The facts show tliat plaintiff was a lodging and boarding-house keeper, and that testator died at her house; that plaintiff, with the assistance of
However, even if the clause be held valid, we do not think the plaintiff has shown that she was the person intended. The plaintiff was at the time of the rendering of the above services a lodging and boarding-house keeper, and while there is no direct evidence upon this point there is a strong presumption that plaintiff was paid for her services, and, therefore, cannot be said to be the one the testator intended as his residuary legatee.
The case of Fiester v. Shepard (26 Hun, 183) 'is somewhat analogous in principle to the case at bar. In that case a testatrix devised all her property to a trustee to apply the same and the rents thereof to the support of her father during his life, and after his death to make certain payments. The will' then provided as follows: “ The residue of my estate, if any there shall be, to be paid by my executor hereinafter named to the person who shall last take care of my father.” In the opinion, holding that a paid caretaker was not entitled to the residuary estate under the clause, the court said: “ The respondent’s claim rests upon the ground that she personally .nursed and cared for Havens in his last sickness. This fact she insists entitles her to the residue under the eighth clause, although
It follows, therefore, that the judgment appealed from should be affirmed, with costs.
Ingraham, Clarke and Scott, JJ., concurred; Houghton, J., dissented.
Judgment affirmed, with costs. Order filed.