
    ELVIRA C. LYMAN, Appellant, v. ELLA LYMAN, Respondent.
    
      Devise — consfti'uotion of.
    
    A testatrix died seized of certain real estate, having acquired title to a portion thereof by a conveyance made to her, and to the remainder .thereof by inheritance.
    Her will contained, among others, the following clause; “I give, bequeath and devise to my granddaughter, Ella Lyman, all my personal property of every description that I may have and be the owner of, at the time of my death, and nil the real estate that I may have title thereto, by deed, lease, or any interest therein.”
    
      Held, that all her real estate, both that acquired by the conveyance and that acquired by inheritance, passed to the devisee under the said clause.
    Appeal from a judgment dismissing the complaint, entered upon tbe trial of tbis action by the court without a jury. The action was brought to recover the possession of certain land which was claimed by the plaintiff as the heir-at-law of Ann Eliza Goodyear, deceased, and by the defendant as her devisee.
    
      JET. Stmrges, for the appellant.
    
      8. S. Burnside, and Amasa J. Parker, for the respondent.
   Bockes, J.:

The parties claim title to the premises in controversy through^ Mrs. Goodyear, the plaintiff as heir-at-law, and the defendant- as devisee‘under her last will and testament.

Mrs. Goodyear at the time- of her decease was seized of certain ■ real estate, holding one portion by conveyance to her, and another portion, being the premises in suit, by inheritance. The clause in Mrs. Goodyear’s will under which the defendant claims is as follows: I give, bequeath and devise to my granddaughter, Ella Lyman, all my personal property of every description that I may have and be the owner of at the time of my death, and all the real estate ■that I may have title thereto, by deed, lease or any interest therein.” Tho plaintiff insists that Ella, under this clause of the will, took only such real estate as the testatrix held by deed or lease; and that the latter died intestate as to that portion held by vnheritance. The, decision of the case turns on the construction to be given the clause of the will above cited. Tho intention of the testatrix, of course, must control, and that intention must, if possible, be determined from 'the language employed by her in the instrument. So, too, effect must bo given to all words and phrases used in it, .with a view .to determine its meaning. Now let us see what was intended by the clause of the will under examination. It reads . thus, “ I .give . . and devise to my granddaughter, Ella Ly•man .... . . all the real estate that I have title thereto by deed, lease, or any interest therein.” Is it not manifest that tho testatrix .intended to devise all her real estate to Ella by this language? As regards,that .portion to which she had title by deed or lease there can be no question; and do not the words “ or any interest therein” .signify-the-same as if they had been “pr in which I have any ■interest”? The words “or any interest therein,” cannot be 'ignored. Some meaning must be given them. They make reference; to lands, other than such as were held by deed or lease. In this case they could only-have application .to lands held,by the testatrix by inheritance. The true reading of the clause seems to be this, “ I give and devise ... all the real estate that I have title .thereto by deed or lease, or in which I have any interest.” So read, the devise would include lands held by inheritance as well as by conveyance. Tho testatrix would then, by plain, and explicit ¿language, ¡have embraced all .-her real estate in the devise ; and this .¡seems;to.have been her obvious .intention. The word “thereto” as here used, means no more or less than “ to; ” and “ therein ” i means plainly “ in which.” The clause-then, with these words substituted, -yjüL .read .thus: “I give, -bequeath .and devise to my .granddaughter, Ella Lyman, all my personal property of every ; description .that-I may have and be the owner of,at the time of my , death, (Cmd;cdl,the real estate that I have title.to by deed or lease, or m which I home any vnt&rest? This construction admits of redundancy of words, but the entire clause above quoted is replete with redundancy. This fault, very common in the drafting of legal •documents, cannot, however, be permitted to abridge or limit their ■effect.

There is another consideration which tends to strengthen the construction above adopted. There is no evidence of an intention ■on the part of the testatrix to die intestate as to any of her prop•ei’ty. She makes a will. It contains no residuary clause. It is laid down in Vernon v. Vernon (53 N. Y., 351) that the law prefers a construction of a will which will prevent a partial intestacy to one which will permit it. So, in Kedfield on Wills (vol. 2, j>. 442) it is said, “ The courts ■ have for a long time inclined very decidedly against adopting any construction of wills which would result in partial intestacy, unless absolutely forced upon them. 'This has been done partly as a rule of policy perhaps, but mainly as one calculated to carry into effect the presumed intention of the testator. For the fact of making a will raises a very strong presumption against any expectation or desire on the part of the testator of leaving any portion of his estate beyond the operation of his will.” The construction above suggested is not forced or strained, but is in accordance with the fair, if not the plain meaning of the language employed to express the intention. We fully concur in the view expressed by the learned judge who tried the case at ■Special Term. He well says, “ This construction gives effect to all the words used, gives them their ordinary meaning, is natural, not inconsistent with any provision of the will, and leaves no-uncertainty of intention.” Besides, if permitted to go outside the language employed, the circumstances surrounding the parties, as ¡evidenced by the will of Mr. Goodyear, and by the settlement of .some difficulties between them, also give support to the conclusion, .above suggested.

The judgment must be affirmed, with costs.

Learned, P. L, and Follett, L, concurred..

Judgment affirmed, with costs.  