
    Matter of the Estate of Sarah C. Miller, Deceased.
    (Surrogate’s Court, New York County,
    October, 1918.)
    Legacies — for whom legacy intended — evidence.
    Where a nephew of testatrix had a son by his first wife, who was always known and called by testatrix as “ Harry,” though his name was “ Hamilton,” and there was a son by his second wife who was christened “Harry Wade,” and a dispute arises as to which grandnephew was intended by a legacy “ to Harry Wade, son of my nephew John H. Wade,’’.and the undisputed testimony of numerous members of the family clearly shows that testatrix had a particular affection for “ Hamilton ” and was very much incensed with his father when he deserted his first wife, leaving her to shift for herself and subsequently obtaining a divorce from her on grounds which did not appear, it will be held that said legacy was intended for “ Hamilton.”
    Proceedings upon the probate of a will.
    Harris, Corwin, Moffat & Schek, for executors.
    Alan Fox, special guardian for Hamilton Wade.
    Jerome F. Donovan, special guardian for Harry Wade.
   Fowler, S.

This is a question of title to a certain legacy by reason of ambiguity. The 5th paragraph of the will reads as follows: “ To Harry Wade, son of my nephew, John H. Wade, the sum of $3,000.” It appears that John II. Wade was a-nephew of the testatrix, that he was married twice, having divorced his first wife, and by Ms first wife Ms oldest son was Hamilton Wade, bnt was always known and called by tMs testatrix as “ Harry ” Wade. By a second wife John H. Wade had another son christened Harry Wade, and the dispute arises as to which grandnephew was intended to take tMs legacy. It would seem at first glance that as there was only one boy by the name of Harry there is no ambiguity or question concermng the- identity of the legatee. But tMs is not so. Considerable testimony was taken both before me and by commission sent to California, where the first wife of John H. Wade still resides Avith her son Hamilton, known to testatrix as Harry. This testimony leads me to believe that the testatrix meant to give the money to Hamilton Wade, the first son of her nephew, John H. Wade. She had a particular affection for this boy, as is shoAvn by the undisputed testimony of numerous members of the family. Testatrix always called Hamilton ‘ ‘ Harry. ’ ’ She was very much incensed with her nephew, John H. Wade, at the time he deserted his first wife, leaving the Avife to shift for herself, and subsequently obtaimng a divorce from her on grounds wMch do not appear. He then married another woman, by whom he had a son called Harry. Testatrix visited the Wades in California and inquired particularly about her 11 Harry,” how he was doing and progressing.

After a careful consideration of all the evidence submitted I am of the opimon that the testatrix by the 5th paragraph of her will intended the legacy of $3,000 for Hamilton Wade, knoAvn to her as Harry ” Wade, a son of her nephew, John H. Wade. The decree may therefore be submitted on notice settling the account accordingly.

Decreed accordingly.  