101 N.E. 905 | NY | 1913
The clause of the will which we are called upon to construe in this case reads as follows:
"Eleventh. All the rest residue and reversion of my estate, both real and personal, I give, devise and bequeath *264 as follows, — to my nephew, Byron J. Tillman of Buffalo, N.Y., one share; to my niece, Grace Joy of Boise, Idaho, one share; and to each of the children of my brother, George Turner, one share, to be divided equally among my said nieces and nephews share and share alike. I direct that the share of any dying with issue surviving shall be paid to such issue and that the share of any dying without issue surviving shall be equally divided among the survivors."
In the portion of the decree which is appealed from the surrogate of Monroe county considered this clause as requiring that the residuary estate of the testator should be divided into eight equal shares "and that of said eight shares said Byron J. Tillman is entitled to one share; said Grace Joy is entitled to one share; said Helen M. Lucas is entitled to one share; said Belle Shumway is entitled to one share; said Fred Turner is entitled to one share; said Charles C. Turner is entitled to one share; said George W. Turner is entitled to one share and said Blanche Turner is entitled to one share."
Byron J. Tillman is a nephew of the testator; Grace Joy is a niece; and the other persons above mentioned are the children of the testator's brother, George Turner (who died before him), except Blanche Turner, who is the daughter of a deceased son of the said George Turner. This son died before the testator made his will.
The extrinsic facts which were proven upon the hearing before the surrogate in reference to the knowledge of the testator concerning his several relatives and notably his lack of knowledge concerning the children of his brother, George, might suffice to create a doubt as to whether the construction adopted by the surrogate was really expressive of the testator's intention were it not for the plain language of the will and the natural and accepted meaning of the words used in the eleventh clause. It is plainly impossible to adopt the construction contended for by the learned counsel for the appellant *265
unless we disregard the presence of the word "each" in the bequest to "each of the children of my brother — George Turner." This word is correctly defined in Anderson's Law Dictionary as meaning "Every one of the two or more composing the whole." InState v. Maine Central R.R. Co. (
On the other hand, very much in point the other way is the case of Penney's Estate (159 Pa. St. 346). There the sixth clause of the will after providing for the payment of previously mentioned legatees and the funeral expenses of the testator, including a tombstone, directed that the balance of the estate be converted into cash and "be distributed share and share alike to the following persons if they are living at the time of my death, namely: to my sister Martha J. Houghton, one share, and to my stepdaughter, Olive J. Smith, one share, and to each of my nephews and nieces then living, one share." The auditing judge divided the residuary estate into three parts and distributed one-third to Martha J. Houghton, one-third to Olive J. Smith and one-third to the nieces and nephews. The court of intermediate appeal and the Supreme Court of Pennsylvania held that this distribution was erroneous by reason of the presence of the dominant word "each" in the bequest. "The grammatical meaning of this clause of the sentence," said Mr. Justice MITCHELL, "does not admit of question. The word `each' separates the class into individuals and is equivalent to the detailed enumeration, `to A. one share, to B. one share, to C. one share,' etc., for which it was a compendious summary. As well said by the learned court below, had the testator, after directing distribution share and share alike to the following persons, then `designated all *267 of the legatees by name there would be no room for doubt that he intended a per capita distribution.' But by the use of the word `each' he did in effect designate them all individually as plainly as if he had inserted their several names."
We are not greatly impressed by the argument in behalf of the appellant based upon the punctuation of the eleventh clause to the effect that because the phrase "to be divided equally among my said nieces and nephews share and share alike" is preceded by a comma instead of by a semicolon it, therefore, is to be deemed to qualify only the gift to the children of George Turner and not all the gifts which precede it. "The natural sense in which words are used, as it appears from judicial inspection, always prevails over both punctuation and capitals, which are regarded as such uncertain aids in the interpretation of written instruments as to be resorted to only when all other means fail." (Kinkele v.Wilson,
It does not seem to us that we should be justified in reversing and ordering a new hearing on account of the exclusion of the evidence mentioned in the appellant's offer to prove, which exclusion was the subject of exception. The facts embodied in the offer related to the extent of the testator's acquaintance and intimacy with Byron J. Tillman; and assuming them all to have been proven we do not see how they could change the result.
Upon the principal question argued, therefore, our conclusion is that the decree of the surrogate should be affirmed; but on the other hand we think it plain that it should be reversed so far as the respondent Blanche Turner is concerned.
The will was executed on February 28, 1910. Frank Turner, a son of George and the father of the respondent *268
Blanche Turner, died April 28, 1908. Having thus died before the making of the will, Frank Turner could take nothing thereunder, and, therefore, nothing under the will passed to his daughter. (Pimel v. Betjemann,
The order appealed from and the decree of the surrogate should be modified so as to adjudge that the respondent Blanche Turner is not entitled to any part of the residuary estate as a devisee or legatee under the will of Charles E. Turner, deceased, and as thus modified, said order and decree should be affirmed, without costs to any party except the special guardian for Blanche Turner, whose costs must be paid out of the estate.
CULLEN, Ch. J., WERNER, HISCOCK and HOGAN, JJ., concur; CHASE and COLLIN, JJ., concur as to the claim of Blanche Turner, but hold that the appellant is entitled to one-third of testator's residuary estate.
Ordered accordingly. *269