25 N.Y.S. 537 | N.Y. Sup. Ct. | 1893
This is an appeal from a decree of the surrogate of Allegany county, the controversy being over the construction given -to the fourteenth clause of the will of Asher W. Miner, deceased. The testator died in the village of Friendship, Allegany county, bn the 13th day of May, 1892, aged 78 years. He left, him surviving, his widow, Electa E. Miner, two brothers, and a large number of nephews and nieces. Mrs. Miner survived her husband but a few months. The testator drew his own will and executed it on the 10th day of August, 1891. By the first clause of his will he bequeaths to his wife $20,000 and the use and income of the further sum of $20,000 during her life; also, all his household goods, furniture, fixtures, and effects, and all his horses, harnesses, carriages, robes, and cutters, and the use, during her lifetime, of all the lands owned by him in the town of Friendship. He directed that the $20,000 devised to her should be paid, one-half in one year, and one-half in two years, from his decease, with interest from the time of his decease, to be paid quarterly. The provisions for his wife were to be in lieu of her dower. By the second clause of his will he bequeathed to each of the proponents the sum of $10,000, and provided that any notes or indebtedness he might have against the proponents or their husbands at the time of his decease should be deducted from the sum devised, respectively. By the third clause he bequeathed to his niece Harriet Hoxie the interest on $4,000
“AH the rest and residue of my estate both real and personal not heretofore disposed of I 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.”
The contestants claim that the testator, by this clause of his will, disposed of no more of his property than his household goods, furniture, and effects. The proponents contend that the testator intended to bequeath to them the entire residue of his property. Mr. Miner resided all his business life in the village of Friendship, Allegany county. He was an intelligent, enterprising, successful business man. He operated, to some extent, in oil lands, oil, and lumber, but his principal business was banking, which he had carried on for many years successfully. He left an estate of the value of from five to six hundred thousand dollars. Mr. and Mrs. Miner married early in life, but, not having any children of their own, they adopted the very commendable plan of taking the children of others and making them members of their household. The proponent Kate M. Wellman became a member of their family in the year 1846 or 1847, when she was 3 years of age, the proponent Myra E. Corbin was taken into the family when she was 16 months old, and the proponent Ella Lockwood when she was 11 years old. They were not legally adopted, but remained members of the family until they were respectively married, and were in all respects treated by the testator and his wife as if they were their natural children. They were liberally educated, and enjoyed all the advantages and privileges of children of wealthy parents. The relations between the foster parents and these children from the time they became members of the family until the death of Mr. Miner were as tender and affectionate, apparently, as if they had been their natural children. They were habitually addressed by Mr. and Mrs. Miner as natural children would have been, and Mr. and Mrs. Miner were called and addressed by them as “father” and “mother.” They took the family name of Miner; they became members of the Baptist church to which Mr. and Mrs. Miner belonged; were married at the home of the testator, one of them to the business partner and confidential friend of Mr. Miner. One married a Dr. Lockwood, who was at the time a physician residing in the state of Illinois, and she went there to reside with her husband. Mrs. Wellman and Corbin continued to reside, after their marriage, near the residence of the testator. Mrs. Wellman’s husband died prior to the making of the will, leaving a family of children. The relations of affection and love between the testator and proponents continued after their marriage. Mrs. Wellman and Corbin had children, and the relations between Mr. and ¡Mrs. Miner and these children were such as would be expected between
The testator executed a former will in the year 1885, which was-found among his papers after his decease, canceled. He unquestionably had that will before him when he drew the will in question, for several of its clauses were copied verbatim into the last will. The provisions for his wife were the same in both wills. By the will of 1885 he gave to each of the proponents the use, during their-life, of 18,00o,1- which was to go to their children after their decease,, and, in case of the death of either of them without issue, the same was to be a part of the residuary estate. The same provision was-made in both wills for Mrs. Hoxie; substantially the same provision in both wills for the churches and societies. By the thirteenth clause of his first will he gave to the three proponents the use during, life of his entire residuary estate, and provided on their death that it should go, share and share alike, to their children, and that, in case either of said devisees should die leaving no children, then the share of said persons dying childless should go to the survivor or survivors of the residuary devisees in equal proportions; thus showing that the testator had in mind, at the date of his first will, to make the proponents and their children the principal beneficiaries of his large estate, and did not intend that his brothers and sisters or their descendants, with the exception of Mrs. Hoxie, should share-in the estate. By stipulation of the parties, photographic copies-of both wills were produced upon the argument They were both-in the handwriting of the testator, with the exception of file-names and residences of the witnesses. The arrangement of the various clauses of the will, the penmanship and phraseology, show that the testator was a man of intelligence, and to a considerable extent familiar with the use of legal language and legal principles. In drafting the clause in controversy he obviously failed to express his thoughts with that, clearness that appears in the balance of the will. In writing the wills he entirely ignored the rules of punctuation, for there is not, in either of the wills, a punctuation point of any kind. In giving construction to this clause of the will we start
“When a plain and definite purpose is endangered by inapt or inaccurate modes of expression, and we are sure we know what the testator meant, we have the right, and it is our duty, to subordinate the language to the intention. In such a case the court may reject