
    Joseph L. Spofford et al., Resp’ts, v. Pauline S. Pearsall, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 14, 1890.)
    
    Wills—Constiujction of.
    Testator by his will directed the residue of his estate to be divided into as many equal parts as he had brothers or their lawful issue surviving, and provided that in determining the number of such parts the issue of a deceased brother should stand in the place of the father. The will then provided that in case of one brother his share should be given to him absolutely, or in case of his death to his issue, and that in case two other brothers named should die leaving lawful issue one of said parts should be given to the issue of each, but in case they survived their shares should go to trustees; that in case any property remained undisposed of by reason of the death of the brothers without lawful issue such property was given to testator’s sister. Testator left surviving three brothers, who were those named in the will, a sister and a niece, the daughter of a brother who had died before the will was made. Meld, that testator did not intend to give any portion of his estate to his niece, and that she took nothing under the will.
    Appeal from a judgment of the special term.
    
      Thos. C?. Shearman, for app’lt, Mrs. Pearsall; Wm. Pierrepont Williams, Thos. T. Sherman and William V. Rowe, for resp’ts.
   Brady, J.

This action was brought to obtain a judicial construction of the will of Eugene W. Spofford, who died on the 23d August, 1887. It bears date the 16th June, 1887. At the time of its execution he had three brothers living, with whom he resided, a sister and a niece who was the daughter of his deceased brother, Gardiner S. Spofford. Gardiner died on the 23d January, 1887, intestate, and several months therefore prior to the death of the testator. The contention arises upon the third and fourth clauses of the will which are as follows :

Third. All the rest, residue and remainder of the estate, both real and personal, which shall belong to me at the time of my death, or as to which I shall have the power of appointment or disposal by last will and testament (after payment of the aforesaid sum of fifty thousand dollars, in case by the terms of the foregoing clause of this will the same shall become payable), I direct to be divided into as many equal parts as I shall have brothers, or their lawful issue, me surviving. But for the purpose of determining the number of such equal parts the issue of a deceased brother, whether one or more, shall stand in the place of his, her or their father as one person only. I make the following disposition of the said equal parts:

“First, In case my brother, Joseph L., survives me, I give one of said equal parts to him absolutely, or in case of his death before me leaving lawful issue, then I give such part to such issue in equal shares and proportions.

Second. In case my brother Paul 1ST. dies before me leaving lawful issue, I give one of said equal parts to such issue in equal shares and proportions. But in case my said brother Paul 1ST. survives me, I give this said equal part of my estate to my trustees hereinafter named. In trust, nevertheless, to invest and keep invested the same, and to receive the income thereof, and to pay and apply the said income to the use, maintenance and support of my said brother Paul N. during his natural life, and at and after the death of said Paul IST. after my death, he leaving lawful issue him surviving, then I give, and said trustees are to pay over said part to such issue in equal shares and proportions. If said Paul M. dies after my death without lawful issue, I give, and said trustees are to pay over the said equal part of my estate to my brother or brothers then surviving, or his or their lawful issue, if any (they or either of them having died before said Pañi M.) in equal shares and proportions, such issue to take per stirpes and not per capita; subject nevertheless to the following proviso, that if my brother Edward Clarence shall be then living, the share he would take under this (second) subdivision of this (third) clause of my will shall not be paid over to him, but shall be retained by said trustees in trust, and the income thereof paid and applied to his use-and maintenance and support during his natural life, and nt his death to be paid to his lawful issue, if any, him surviving, in equal shares, and if there be none, then to my brother Joseph L., if living, or his lawful issue, if any, he being dead, in equal .shares.

Third. In case my brother Edward Clarence dies before me, leaving lawful issue, I give one of said equal parts to said issue in equal shares and proportions. But in case my said brother Edward Clarence survives me, I give this said equal part of my estate to my trustees hereinafter named. In trust, nevertheless, to invest and keep invested the same, and to receive the income thereof, and to pay and apply the said income to the use, maintenance and support of my said brother Edward Clarence during his natural life. And at and after the death of the said Edward Clarence after my death, he leaving lawful issue him surviving, then I give, and said trustees are to pay over said part in equal shares .and proportions to such issue. If said Edward.Clarence dies after my death without lawful issue, I give, and said trustees are to pay over the said equal part of my estate to my brother or brothers then surviving, or his or their lawful issue, if any (they or either of them having died before said Edward Clarence), in equal shares .and proportions, such issue to take per stirpes, and not per capita; subject, nevertheless, to the following proviso, that if my brother Paul N. shall be then living, the share he would take under this (third) subdivision of this (third) clause of my will, shall not be paid over to him, but shall be retained by said trustees in trust, and the income thereof paid and applied to his use, maintenance and support during his natural life, and at his death to be paid to his lawful issue, if any him surviving, in equal shares, and if there be none, then to .my brother Joseph L., if living, or his lawful issue, if any, he being dead, in equal shares.”

Fourth. In case any of my property remains undisposed of under the foregoing provisions of this will, by reason of the death of my said brothers without issue before my death, I give, devise and bequeath such property as may remain undisposed of as aforesaid to my sister Pauline, wife of Thomas S. Pearsall, if living, and to her issue if she be dead, such issue to take in equal shares and proportions.”

The learned justice presiding at the special term thought the testator intended to give his entire estate in equal parts to his brothers living at the time the will was executed, or to their issue; not to the issue of the brother deceased at all, or to his sister except in a remote contingency. This view is sustained by cogent reasoning, predicate of the terms and form, frame and substance of the clauses, and it is substantially conceded that in order to accomplish a different result, namely, a division of his estate into four equal parts, it is necessary to interpolate provisions to that end.

Whatever power the courts may enjoy of effectuating a testator’s intent in a will as it exists by rejecting, supplying or transposing, words they have not yet attempted to change that intention and carve out another inheritance, by adding apt words to accomplish that object. Here it is not necessary however to resort to the power suggested for the interpretation of this will, for the reason that the testator’s intention was, it clearly appears, to divide his whole estate primarily between his three brothers living and their issue. The particular reference to these brothers and to his sister is a positive indication that he had no others in view' when the will was executed and meant to give his estate to them and to them only.

If there were any expression in the clauses mentioned suggestive of an intention to provide for the issue of his brother, deceased, it would be within the established province of the court to carry that design out fully and it would be done with pleasure, but there is not. His brother was dead when the will was made and his niece was living, facts of which it must be presumed he was conscious, and yet no reference is made to either, a silence most effective in proof of an intention not to make provision for the niece. The language of the first paragraph of the third clause indeed properly interpreted shows that such silence was intentional. He directs the residue of his estate to be divided into as many equal parts as he should have brothers or their lawful issue him surviving. His brother Gardiner was then dead and could not therefore survive him He did not however leave the subject in that general, way but proceeded to illustrate what he meant by “brothers or their lawful issue ” and said “I make the following disposition of the said equal parts” and did it by naming the three brothers then living, thus generally designating the existing brothers as the objects of his bounty and then by particular mention of each of these brothers defining and declaring how the share of each should be held and enjoyed. Indeed the whole scheme of the disposition of the residue of his estate is predicate of the lives of these three brothers, made so by specific provision and designation. If we seek for kindred cases with kindred results it will not be in vain.

In Glanville v. Glanville, 33 Beav., 304, the trust was for four nephews and a niece, naming them, to be equally divided between them. In fact however there was an additional nephew at the testator’s death. The master of the rolls, Sir John Bomilly, although desirous to admit the other nephew, and justly so, felt obliged to exclude him. He said: “ I am afraid it is not in the power of the court to extend a gift where a definite meaning can be given to the words as they stand.” And again: “1 have been very desirous to admit the fourth nephew to participate in this bequest. * * * If the testator had merely said ‘ in trust for my four nephews and my niece ’ I should have come to a different conclusion ; and it certainly seems strange that he should exclude a child of so tender an age, namely a boy who in 1862 was only ten years old.”

In re Hull's estate, 21 Beav., 314, there is given us a stronger illustration, for that the gift in trust was equally to be divided “ amongst all his nephews and nieces then living, namely,” and the testator then specified them. There were a nephew and a niece, but they were not embraced within the trust. The master of the rolls after consideration of the general doctrine which rejects a specified number when it is apparent that it was a mere slip in expression. Garvey v. Hilbert, 19 Ves. Jr., 126, says: “ I think that the testator has himself specified of whom the. class is to consist, and we cannot enlarge it. He has done so by the word 1 namely,’ in both cases giving a distinct meaning to the class he meant to specify. This distinguishes the present from the other cases, and makes it a legacy only to the families he has enumerated.”

It is not deemed necessary, however, to pursue this subject further; for where we have ascertained the intention of the testator, we have the guiding star which leads us through all the intricacies presented by the able counsel for the appellant to a place of security. For these reasons, and adopting those given by Judge Barrett, it is thought that the judgment appealed from should be affirmed, but without costs.

Yan Brunt, P. J., and Daniels, J., concur.  