In re the Final Judicial Settlement of the Account of Proceedings of Neydorff
184 N.Y.S. 551
N.Y. App. Div.
1920
Check Treatment
Woodward, J.:

The question presented upon this appeal is the construction of the last will and testament of Leslie H. Helmes, deceased. This will gavе to each of decedent’s brothers and sisters the sum of $1,000. It then gives to his daughter, Olive May Helmes Willey, “ and to each of my grandsons, Leslie Helmеs Willey and Everett Willey,” the sum of $1,000, and then provides that All the rest, residue and remainder of my estate, real and personal, including lapsed lеgacies, I give and devise to my niece, Gertrude Margarete Helmes,” The testator then nominates and appoints this niece, Gertrudе Margarete Helmes, and his brother, Lester H. Helmes, and David A. Thompson as executors of his will. It is probable that Gertrude Margarete Helmes is .a daughter of one of the brothers who was named in the earlier clauses of the will, and it is obvious ‍​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌​​​‌‍that the testator intended to exclude the' remaining children of these brothers from his bounty, and to give his estate, less the specific legacies, to the niece. The learnеd surrogate has, however, decreed that because of the provisions of section 29 of the Decedent Estate Law there wеre no lapsed legacies upon the death of one of the brothers and one of the sisters named in the will; that the bequests of $1,000 to еach of these persons belong to the descendants of such deceased brother and sister; and the niece, Mrs. Gertrude M. H. Neydorff, аppeals from the decree.

At common law a legacy or devise lapsed when the legatee or devisee died before the testator. (Matter of Tamargo, 220 N. Y. 225, 232.) The result was that in many cases the testator died intestate as to the gift to particular persons, and to obviate this it was provided by section 29 ‍​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌​​​‌‍of the Decedent Estate Law (as amd. by Laws of 1912, chap. 384), which re-enacted and amended similar provisiоns of the lie vised Statutes (2 R. S. 66, § 52), that “ Whenever any estate, real or *533personal, shall be devised or bequeathed to a. child or other descendant of the testator, or to a brother or sister of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or othеr descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shаll vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator аnd had died intestate.” This clearly was not intended as a limitation upon the right of a testator to give his property to whomsoever he might сhoose; it was merely intended to vest the property of the testator at his death in the children of those who had been made the beneficiaries of a will, where no other provision was made. It was assumed that in making a gift to a parent the testator contemplated the benefit of such parent’s children, in the absence of a contrary purpose being expressed, and the common law was modified to this extent in the case of gifts to the descendants of the testator or to his brothers and sisters. In other words, where the testator wаs providing for his immediate family — his brothers and sisters or his descendants — the Legislature presumed, in the absence of other provision, that the testator intended the gift to remain in the family of the brother or sister or Ms own descendants, and to tMs extent only is the common law limited. (Matter of Wells, 113 N. Y. 396.)

The will here undеr consideration follows the general rule, that it speaks as of the date of the death of the testator, in so far as the vesting of the property goes. At common law if there ‍​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌​​​‌‍was a gift to any person it vested only upon the death of the testator, and if the legatеe died before the testator at the latter’s death the gift fell into the residuary estate. (Matter of Pearsall, 91 Misc. Rep. 212, 217; Matter of Kimberly, 150 N. Y. 90, 93; Moffett v. Elmendorf, 152 id. 475, 485.) It was to prevent this result, in the particular instanсes named, that section 29 of the Decedent Estate Law was enacted, and not to defeat an expressed purpose оf the testator. During the lifetime of the testator he could have changed the will; nothing vested in the brother and sister during the lifetime of the testatоr, and the language of the will was that “ All the rest, residue and remainder of my estate * * * *534including lapsed legacies, I give and devise to my niece.” But as wé are bound to give effect to all the lawful purposes of the testator, and must make use of all his language, it must be obvious that the testator referred to “ lapsed legacies ” as those legacies which were defeated by the prior death of the beneficiaries. It is the same, in effect, as though he had declared that “ in the event of the death of any of my said brothers or sisters the share which such brother or sister would have received shall go, not to my residuary estate, but to my niece.” He had a perfect right to make such a disposition, and he had a right to convey that purpose in the language ‍​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌​​​‌‍employed in this will. He clearly understood what result he wanted to reach. He made no provision for any of the children of his brothers and sisters with the exception of one niece. As to this niece shе was to have the residuary estate “ including lapsed legacies.” He was speaking of contingencies likely to happen betwеen the time of the making of the will and his death. If the brothers and sisters survived him they were to have $1,000 each. If they did not survive — if the legacies lapsed —these lapsed legacies were given to the niece, and the word “ lapsed ” will not be taken in its technical sense where that will dеfeat the testator’s intention. (Van Pretres v. Cole, 73 Mo. 39; Yeates v. Gill, 9 B. Mon. [Ky.] 206; Chenault’s Guardian v. Chenault’s Estate, 9 S. W. Rep. 775.) In Yeates v. Gill (supra) the court held that in a statute (Ky. Laws of 1838-39, p. 38, chap. 1019) providing that “hereafter legacies and devises tо children and grandchildren shall not lapse by the death of the legatee or devisee before the testator, provided such legаtee or devisee shall have children living at the death of the testator,” etc., the word “ lapse ” must not “ be taken in its technical sensе as indicating the falling back of the legacy or devise, or its subject,, into the testator’s estate.” The will speaks of an event which may hаppen in the testator’s lifetime which may prevent the vesting of the bequests, and he has provided for it. All ‍​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌​​​‌‍of his estate is disposed of; there is no intestacy. At the moment of his death a brother and a sister named in his will were dead. If the $2,000 provided for them would otherwise have fallen into the residuary estate and remained undisposed of, the statute would have vested the property *535in the children of the deceased brother and sister; but the testator had provided for the contingency; he desired that his niece should have it, and it was thus taken out of the cоntrol of the statute.

The decree of the surrogate should be reversed, and the distribution should be made in harmony with this opinion.

All concur, except John M. Kellogg, P. J., dissenting.

Decree reversed, with costs payable out of the estate, and distribution directed in accordance with the opinion.