
    Nettie R. Hogle et al., Resp’ts, v. Herbert M. Hogle et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 3,1888.)
    
    1. Will—Construction of—Evidence admissible to aid.
    Evidence of the state, circumstances and habits of the family are ad- , missible to aid in the construction of a will.
    3. Same—When evidence of declarations of testator admissible.
    The only case in which evidence of the declarations of the testator can be received is where the description of the legatee, or of the thing bequeathed, is equally applicable, in all its parts, to two persons or to two things. They are inadmissible to show an intention to execute a power of appointment.
    3. Same—Intention to execute power—How shown.
    The tendency is to hold that a general bequest (by a testator who has a power to dispose of personal property by will), without, reference to the power, is a strong indication of the intent to execute the power, unless the contrary be shown.
    4. Same—Power of appointment—What shows intention to execute.
    The testatrix was given, by her husband’s will, two-thirds of his property during life, with power to her to dispose of the same as she might choose by will. The testatrix, who survived her husband, by her will after some small legacies, gave some household furniture to W. “for the use of my grandchildren,” naming them; “also the use of all the residue of my property of every description for the maintenance of said children during their minority, the residue to be equally divided among said children when * * * shall arrive at the age of twenty-one years.” Testatrix had no property besides her household furniture. Held, that testatrix intended to execute the power given her by the will of her husband; that her will executed said power.
    
      5. Practice—Surrogate’s court—Citation—Service of on an infant.
    Where the citation, issued on the proceeding to probate a will, has not been served upon an infant under the age of fourteen years, as required by Code Civil Procedure, §§ 2526 and 426, the appointment of a guardian ad litem does not cure the failure to serve.
    Appeal from judgment of the supreme court, rendered and entered in Rensselaer county, upon the report and decision of Samuel S. Hatt, referee, construing the will of Mary A. Hogle, deceased, in its alleged ambiguity, under the force of the provisions contained in the will of Peter R. Hogle, deceased, her husband.
    The plaintiffs are the grandchildren of Peter R. and Mary A. Hogle, the children of their deceased son Jacob; and the defendant, Herbert M. Hogle, is also their grandchild, and the only child of another deceased son.
    The other facts appear in the opinion. .
    
      E. R. Harder, for app’lts; W. S. Hevenor, for resp’ts.
   Learned, P J.

In the case of Charter v. Charter (L. R, 7 Eng. and Irish App., 364; affirming L. R., 2 Prob. and Div., 315). the question of extrinsic evidence in regard to wills was fully discussed. 1 Moak’s Eng. Rep., 249; 12 id., 1. It was held that evidence of the state, circumstances and habits of the family was admissible to aid in the construction of a will. That the only case in which evidence of the declarations of the testator could be received is where the description of the legatee, or of the thing bequeathed, is equally applicable, in all its parts, to two persons or to two things. We have cited this English case because it was very carefully considered, and, while the opinions given in the house of lords did not agree in everything, they did agree as to the point above stated about declarations of the testator. If a testator gave a legacy to “my nephew, John Smith,” and had two nephews of that name; or if a testator gave to a legatee “my black horse Tom,” and had two black horses by that name; in each of those instances, according to that decision, declarations of the testator would be admissible. But only in such and similar cases.

But in the present case, declarations of the testatrix were admitted to show that she intended to execute a power of appointment. Such declarations were inadmissible. They do not come within the exception stated in that case; even assuming that such exception is the rule in this state.

The same doctrine is distinctly stated in White v. Hicks (33 N. Y., 387). So, also, Williams v. Freeman (83 N. Y. 562.

This error must make a new trial necessary, unless it shall appear that it could not have affected the.result.

The will of Peter R. Hogle gave two-thirds of his property in trust for his wife during life, with power to the wife to dispose of the same as she might choose by will. Mary A. Hogle, the wife, survived and made her will. By this, after some small legacies, she gave some household furniture to Harriet A. Wolver “for the use of my grandchildren, Nettie R. Hogle, Welmot Ernest Hogle and Bernice Hawlthon Hogle. Also the use of all the residue of my property of every description for the maintenance of said children during their minority, the residue to be equally divided among said children, when Bernice H. Hogle shall arrive at the age of twenty-one years.”

It should be noticed also that by the will of Peter R. Hogle one-third of his estate was given to his grandchild, Herbert M. Hogle, if he should reach twenty-one; if not, to his children. Nettie, Wilmot, Bernice and Florence V. were children of Jacob H.

There is no evidence that, aside from household furniture, Mary A. Hogle had any considerable property. She had claimed a life policy on her son Jacob H., but the claim was decided against her.

These seem to be substantially all the circumstances tending to aid in the construction of Mary A. Hogle’s will.

In the case of Van Wert v. Benedict (1 Brad., 114), it was held that wills devising and bequeathing all the real and personal property of the testator operate on lands and personalty embraced in a testamentary power, although the power be not recited or referred to. The surrogate relied to some extent on 1 R. S., 737, § 124-120, which applies this rule to land. This doctrine is laid down in 1 Red. Wills, chap. VI, § 32. The English Statute (1 V. & C., 26, § 27), has enacted this rule.

Chancellor Kent says in his text that if a will be executed without reference to a power, it operates as an appointment, provided it cannot have operation without the power. 4 Kent Comm., 335.

But, in a note to later editions, it is stated that it is the tendency of some American decisions to adopt the later English doctrine, without the statute. If we turn to section 126 of the Revised Statutes above cited we shall see that if the property in question had been real estate it would have passed by the will of Mary A. Hogle.

In Bolton v. De Peyster (25 Barb., 539, at 562), the court said this rule should apply also to personal estate.

In White v. Hicks (33 N, Y., 383), the court followed the same rule, influenced, however, partly by considering the amount of the property owned by the testatrix, and also the nature of the trust. '

In Mott v. Ackerman (92 N Y., 539), the matter in litigation was real estate. But the trust embraced personal, and the court, applying the statutory rule, made no distinction.

In Warner v. Conn. M. L. Co. (109 U. S., 357), the court adopted this rule, and refer to several cases, among them to Sewall v. Wilmer (132 Mass.. 131). That last named case is interesting, because the testatrix executed her will in Maryland, and, by the laws of that state, it was admitted that the will would not have been a sufficient execution of ■the power. But the court held that in Massachusetts a general bequest of all property, real and personal, of which the testator should die seized or possessed, was (or at least might be) a good execution of a power, notwithstanding the testator had property of his own on which the will might operate. See also Funk v, Eggleston (92 Ill., 515). Of course it is a question of the intention of the testator. But the tendency is evidently to hold that a general bequest, without reference to the power, is a strong indication of the intent to execute the power, unless the contrary be shown.

We see then that Herbert M. a grandson of Peter R. had had one-third of his grandfather’s estate. If Mary A. made no appointment, Herbert M. was to have another third and the children of Jacob H. the remaining third. Mary A. had the income for the two-thirds for her life and was to support the children of Jacob H. It is said (though it does not very clearly appear) that she had $100, which by her will she gave to her sister. She disposed of her household furniture. She had no other property. It must be then that she intended to execute the power given by the will of Peter R. There was nothing else on which the general devise and bequest could operate. Herbert M. had received about $1,390. The two-thirds were about $2,700. She gave one-third of this to each of these children of Jacob H. We think therefore, that her- will executed the power.

Another question arises on a point of evidence. The will of Mary A. was offered in evidence with the certificate ■of probate attached. Objection was made on the part of Herbert M. that he had not been served with a citation. Subsequently the defendant, Herbert M. introduced in evidence the proof of citation which shows that it was served by leaving a copy with Lillie Harder, the mother of said Herbert, then a minor under fourteen. The decree of the surrogate and the proceedings show a consent of E. R. Harder to become special guardian of the infant and the ■order appointing him such special guardian.

Sections 2526 and 426 show how the citation should have been served. It was proved not to have been legally served on the infant, and of course the appointment of a guardian ad litem, did not cure the failure to serve. Pinckney v. Smith, 26 Hun, 524. Proof of the due exection of the will might have been given on this trial; but this was not done. The defendant Herbert M. had a right to insist on this trial that he was not concluded by the probate, to attend which he had never been legally cited. For this reason there must he a new trial.

We are unable to see the necessity for this action. We do not understand why the surrogate could not have, decreed distribution, and why he ought not to have donoso, without causing the expense and delay of an action. It. is now a year and a half since he stayed the proceedings in his court; and an expense of over $400 costs had been incurred up to the time of the judgment, This expense-would have been saved to the estate if the surrogate had-proceeded with the distribution. No appeal was taken from his refusal to proceed.

_ In this view of the case we grant no costs of appeal to-either side.

Judgment reversed, new trial granted without costs to. either party; referee discharged.

Landon and Ingalls, JJ., concur.  