
    Annie Harrington, Appellant, v. Mary Abberton, Individually, and as Executrix, etc., of Nicholas Hannan, Deceased, and Others, Respondents.
    First Department,
    October 19, 1906.
    Will — residuary clause void for uncertainty of beneficiary—failure of claimant to show right to bequest.
    A bequest of the residuary estate “ to the person, man or woman, that t-ikes care of me in my last illness and that will remain with me and prepare me tor a Christian death,” is void for uncertainty as to'the beneficiary.
    In any event a boarding house keeper in whose house the testator lodged during his last illness cannot identify herself as the beneficiary intended, for the presurhption is that.she was paid for any services rendered.
    Houghton, J., dissented.
    Appeal by the plaintiff, Annie Harrington, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York, on the 8th day of January, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      David B. Simpson, for the appellant.
    
      John McG. Goodale, for the respondent Hannan.
    
      Eugene Seligman, for the respondent Rhodes.
   O’Brien, P. J.:

This action is brought for the construction of the will of Nicholas Hannan, deceased. Two questions are presented upon this appeal. The first question is as to the validity o£ the clause of the will disposing of testator’s residuary estate ■—is the clause void for uncertainty? If the clause is valid the second question arises — has the plaintiff, who desires to be declared residuary legatee,- shown that she is the residuary legatee- there designated ?

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 her daughter and brother-in-law, cooked and served the meals of the testator; that during his last illness the meals of the testator were served in his room, the daughter and brother-in-law of the plaintiff assisting in the work occasioned thereby; that during the last illness plaintiff, with the assistance of one of the boarders in her house, bathed the testator; that plaintiff sent her daughter for a doctor, and her brother-in-law for a priest. The brother-in-law, also, testified that he had frequently sat with the plaintiff, and, by words of consolation and advice, did his best to prepare the testator for a Christian death. From these facts it is evident that plaintiff, her daughter, her brotlie'r-in-law, the boarder who assisted in his baths, the doctor and the priest, all come within the description of the residuary clause. It may be conceded that plaintiff more fully answers the description of the residuary legatee than any other, and yet this would not remove the uncertainty or indefiniteness so that courts could enforce such a bequest. It is necessary in order for her to take that she fully answer the description of the residuary legatee, and she alone, in order that the court may say with reasonable certainty that she is the person intended.

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 she was employed by the trustee and was paid by him for her services. As was pertinently said in the brief of the appellant’s counsel, if the claim of the respondent is good, her servant, who also took care of the deceased by her direction, could claim on the like ground. The intent of the testatrix was not to give the residue of her estate to the individual who should happen to be the last one with his own hands to care for her dying father, or to give it to the servant or agent who should attend him and care for him during his last sickness, under employment and compensation from the trustee. Such a disposition of her estate would have been whimsical and is not to be imputed to her, unless the language of the will requires it. We think it does not.”' By a similar process of reasoning we should reach the same conclusion that the appellant failed to establish that she was the one intended.

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.  