127 N.Y.S. 641 | N.Y. App. Div. | 1911
Lead Opinion
Matilda Turner died on the 5th of August, 1909. Three days prior thereto she executed a last will and testament, which, after a contest, was admitted to probate.- At the time of her death and when the will was executed she owned six leaseholds, known as Nos. 325, 327, 329 and 331 Ninth avenue, and Nos. 400 and 402 West
“New York, Aug. 2, 1909.
“In the name of God, amen.”
“I,
• “ Matilda Turner bequeath unto my sons & daughters as fpllows in case of my death. .
John Turner One house George Turner One house .William L. Turner one house Jennie S. Fox one house at 402 W. 29 St. N.Y.City and Matilda D. Turner One house 400 W. 29 St.' and .one house 331-9th Ave., Half Contents of house to Jennie S. Fox and Matilda D. Turneiv
her
“Matilda X Turner
' ' mark
“ Witness:
“ James W. Patterson, Com. of Deeds:
“Nellie Looney
“Ella M. Wyatt.”
The grandchildren opposed the probate upon various grounds and two of them, by special guardian, have appealed from the decree admitting the will to probate and construing certain of its provisions.
I am of the opinion that the decree should be reversed and probate refused. The testatrix undoubtedly intended to give one leasehold to each son, but which one it is impossible from the will or anything which appeared before the surrogate to tell. The learned surrogate, relying upon the authority of Duckmanton v. Duckmanton (5 Hurl. & Norm. 219), held that the sons John, George and William were each entitled to a leasehold and that they could elect in the order named in the will which one they would
The question raised in the Asten case is quite similar to the one here ¡^resented. There, the testator owned four houses in a given locality. He had four sons. By his will he attempted to give to each son, naming him, one house by the following description: “ All that newly built house being Ho. — Sudeley Place, Cotsfield Road, with the piece of ground in the rear thereof.” The four houses in Sudeley Place were all built by the testator. himself at about the same time and shortly prior to the time the will was exe
, In the Lomax case it was held that a provision in a will which located.laud devised in a section where the testator owned no land, would not permit parol evidence of a mistake in the description, although he, in fact, owned land answering the description in another section, of which he did not dispose in the will.
Hot only this, but it will be observed there is nothing in this will by which the three leaseholds attempted to be disposed of can be identified. The case- is, therefore, upon this; point, one of patent ambiguity which' cannot be removed bv extrinsic evidence. (Brown v. Quintard, 177 N. Y. 75. See, also, cases cited in note 2, Lomax v. Lomax, 6 L. R. A [N. S.] 942.)
The attempted gifts to the three sons being void for indefiniteness, the gifts to' the daughters must also fail. The general scheme, of the testatrix was to give one leasehold to each of the three sons and one daughter, and two leaseholds to the other daughter. The scheme having failed, at least so, far as the, three sons are concerned, it would be unjust to hold that despite this, result tlie two daughters might take under .the will and then share with the three ■ brothers
If the foregoing view be correct, then it follows that the instrument offered for probate should have' been declared void for uncertainty.
The decree must be reversed, with costs to each party appearing on the appeal, payable out of the estate, and the proceeding remitted to the surrogate for further action, in accordance with the opinion of this court.
Clarice and Dowling, JJ., concurred; Ingraham, P. J., and Miller, J., dissented.
Dissenting Opinion
Construing this instrument in the light of the surrounding circumstances, the situation of the testatrix and of her family, and the nature of her estate, it is certain that she intended to dispose of her six leaseholds, giving three to her two daughters and three to' her three sons. She intended to give particular houses to each of her daughters, for she specified which each Was to have. She intended to give Nos. 325, 327 and 329 Ninth avenue to her three sons, for those were the only, ones she had, except those given to the daughters. Plainly she did not intend to give a particular house to each of the sons, for in the gift to them she did not attempt to specify which each should have, as she was particular to do in the case of the daughters. There is nothing to indicate that she preferred one son to another, and certainly that will not be. inferred from the order in which they were named, as it was doubtless a mere accident that one happened to be named ahead of another. For anything appearing to the contrary it might well be assumed that she regarded them alike, and it is plain that she intended to treat them alike, for, not intending to give a particular house to
We should have no difficulty in sustaining the will, if in place of the words, “John Turner One house, .George Turner One house, William L. Turner One house ” were substituted the words “ John Turner, George Turner, William L. Turner three houses.” To be sure, standing alone, there is a difference between the two expressions, But the expression used is not to be construed apart from its context. Neither the testatrix nor the draftsman of the will perceived the distinction between “ one- house to each son ” and an “ undivided interest in three houses to each.” The ignorance and unskillfulness of the draftsman should make us the more astute in our search to discover the intention of the testatrix. (Lytle v. Beveridge, 58 N. Y. 592.) If we can glean from the body of the instrument, read in the light of the/circumstances proper to be considered, an intent to give the three leaseholds, Nos. 325,. 327 and 329 Ninth avenue to the three sons, to treat them alike and not to give a particular house to each, I fail to see why we cannot give effect to that intent the same as though the testatrix had expressed it in appropriate words. Certainly we should do that, unless precluded by controlling authority, and it is very difficult to find, one will case which can be said to be controlling in another on the question of construction.
In Gallavan v. Gallavan (57 App. Div. 320), cited by the appellant, it.was assumed that the devises in question were void, and the question considered was, whether the realty, attempted to be devised went to the residuary devisee or to the heirs at law. That is the only case in this State, cited' by counsel or discovered in such
It is quite»true that there is a patent ambiguity in this will. The words “ one house” standing alone tend to identify nothing. But Lord Bacon’s canon cannot be applied in all strictness, certainly not in the construction of wills. ( Vide Jarman Wills [5th Am. ed. Rand & T.], 743 ; Schouler Wills [3d ed.], § 581.) The statement made by Chancellor Kent in Mann v. Executors of Mann (1 Johns. Ch. 231,234) • “ * * * • that parol evidence can not be admitted to supply or contradict, enlarge or vary, the .words of a will, nor to explain the intention of the testator, except in two specified cases : 1. Where there is a latent ambiguity, arising dehors the will, as to.the person or subject meant to be described; and, 2. to rebut a resulting trust ” must be understood as referring only to evidence of declarations of the testator and the like, to explain his intention. It is one thing for the expositor of a will to put himself in the position of the testator, for the ■ purpose of understanding the language used, and quite a different thing to admit evidence of the intention of the testator dehors the will. And if any rule with respect to the construction of wills is well settled, it is, that in construing wills the court is always entitled to know the surrounding circumstances, the situation of the testator and of his family, and the nature and extent of his property. The testatrix had three houses aside from those specifically designated as intended for the daughters. She gave three to her three sons. Can there be a possibility of doubt that the three not specified were intended for the three sons \ If she had had three houses on ¡Ninth avenue and three houses somewhere else, I grant that it would be a case of patent ambiguity which could not be removed by extrinsic evidence to show what was intended. But surely, an ambiguity, which is removed the instant disclosure is made of the testator’s property, should not be allowed to defeat a will.
The decree of the surrogate should, therefore, be modified . accordingly.
Ingraham, P. J., concurred.
Decree reversed, with costs to all parties appearing, payable out of the estate, and proceeding remitted to surrogate as directed in opinion.