
    In the Matter of the Petition of Aaron Bearse to Compel a Judicial Settlement of the Accounts of Jennie E. Brown, as Executrix, etc., of Izabenda Fulton, Deceased; Aaron Bearse, Petitioner, Appellant; Jennie E. Brown, as Executrix, etc., Respondent.
    
      (Supreme Court, Appellate Division, Fourth Department,
    
    
      April 28, 1915.)
    Will construed—Devise with contingent remainders over if beneficiary DIES WITHOUT ISSUE—ACCOUNTING BY EXECUTRIX—WHEN CONTINGENT REMAINDERMEN MAY INSTITUTE PROCEEDING.
    A will wherein the testatrix by a first clause gave and bequeathed to her daughter all her property of every kind and description and by a second clause gave and bequeathed to the nephews and nieces of the testatrix all the estate received by the daughter by virtue of the will and-held by her at the time of her decease, if she should die without issue, does not give to the daughter a fee simple absolute in the real property, but reserves to the nephews and nieces, as remaindermen, certain continegnt interests which make them persons “ interested in the estate ” of the testatrix within the meaning of the statute. Hence, a nephew of the testatrix is entitled to maintain a proceeding to compel the daughter as executrix to make an accounting.
    Appeal by the petitioner, Aaron Bearse, from a decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said Surrogate’s Court on the 7th day of October, 1914, denying his application to compel the executrix to account herein.
    A. Lee Olmsted (Olmsted, Van Bergen & Searl, attorneys), for the appellant.
    William H. Harding (Goodelle & Harding, attorneys), for the respondent.
   Merrell, J.

The petitioner claims to be a person interested in the estate of Izabenda Fulton, late of the county of Onondaga, deceased, and as such has instituted a proceeding to obtain a judicial accounting by the executrix of the will of said decedent. The executrix contends, and the surrogate of Onondaga county, in the order appealed from, has decided, that the petitioner is not a person interested in said estate entitled to require such accounting, and the petition therefor has been dismissed. The controversy involves the construction of the ■will of said decedent.

Izabenda Fulton died in the county of Onondaga, where she then resided, in the year 1875, leaving a daughter, Jennie E. Brown, as her sole heir at law and next of kin, her surviving, and leaving a last will and testament, executed by said decedent on the 27th day of December, 1871. Subsequent to the death of decedent and on the 12th day of July, 1875, said will was duly admitted to probate in the Surrogate’s Court of said county of Onondaga, and letters testamentary thereon on said last-mentioned date duly issued out of and under the seal of the said Surrogate’s Court to the said Jennie E. Brown, sole executrix in said will named. The said executrix duly qualified as such and entered upon and ever since has acted and is ' still acting as executrix of said will, and said letters testamentary still remain in full force and effect. '

After the usual preliminary and formal recitals, the instrument provides:

" First. I give and bequeath to my daughter, Jennie E. Brown, all of my estate, both real and personal, of every kind and description, whatsoever.

" Second. In case the. said Jennie E. Brown shall die without issue then and in that case I give and bequeath all of the estate received by her by virtue of this instrument and held by her at the time of her disease to the children of my brothers, Ward Bearse and Aaron Bearse, and to James M. Bearse, who is the son of my deceased brother, David Bearse, share and share alike.”

By the third and last clause of the will the said Jennie E, Brown is named as sole executrix.

It is the contention of the petitioner that the first clause of said will, which would seem in and of itself to give and bequeath unto the daughter Jennie all of the property of the testatrix, was limited by the second clause, and that, reading the two clauses together, the daughter was not given an estate in fee simple absolute in the real property of which decedent died possessed. It is the claim of the petitioner that such part of decedent’s property as might remain and be held by said daughter at the latter’s decease, in case she should leave no issue her surviving, should pass to -the persons named in the second clause of said will.

On the other hand, the daughter claims that the testatrix, having, by the first clause of the will, bestowed upon her all of her estate, both real and personal, and of every kind and description whatsoever, without limitation therein expressed, the second paragraph of the will was repugnant thereto, and that her estate cannot thereby be taken away.

The petitioner is a son of Ward Bearse, a brother of testatrix, and one of the persons specified in the second clause of the will. Therefore, if petitioner is correct in the interpretation he seeks to put upon said will, he is an interested party and entitled to obtain an accounting by said executrix, pursuant to the provisions of the Oode of Civil Procedure. (See Code Civ. Proc., § 2727 et seq., as amd. by Laws of 1914, chap. 443.) No accounting has ever been had by said executrix since letters were issued to her. She is now over sixty years of age and is without issue.

What then was the intention of the testatrix as to the disposition of her property and estate by the two clauses of her will above quoted ? By the first clause it will be noted the testatrix gives and bequeaths to her said daughter all of her estate,, both real and personal, of every kind and description whatsoever. The usual words of inheritance, where an intention exists to convey an absolute estate, are wanting. Still in and of itself it must be conceded that the first clause, taken alone, would be sufficient to bestow upon the daughter all of the estate and property of the testatrix. By the second clause it is provided that in case the daughter shall die without issue, then all of the estate received by her under 'the will, and held by her at the time of her decease, is given and bequeathed to the children of Ward Bearse and Aaron Bearse, brothers of testatrix, and to James M. Bearse, a son of a deceased brother, share and share alike. It seems entirely clear to me that it was the intention of the testatrix by the 2d clause of the will to limit the estate which she gave to her daughter in the 1st clause. That is, she intended, not. that her daughter should take an unconditional estate in the property, but that as to such part thereof as might remain after the daughter’s death without leaving issue and be then held by her, should pass to the nephews or nieces specified in the 2d paragraph. A great many cases are cited by counsel in their respective briefs as authority for the positions taken for and against the petitioner herein. Canons of interpretation are invoked to discover, if possible, the intention of the testatrix in the use of the language of her will. Indeed, the courts have laid down certain canons of construction to be applied in cases where the language used in a will is ambiguous and the intention of the testator hidden or uncertain. The real test in the construction of a will is to determine, if possible, what, in fact, was the intention of the testator. It has been often remarked that no will has a brother, and it is undoubtedly true that reliance must chiefly be had upon the provisions of the instrument under consideration in order to discover the intention of the testator, rather than through the application of rules of construction.

The respondent cites the old common-law case of Jackson v. Bull (10 Johns. 19) and a number of other kindred cases holding that in cases where a will in one clause grants an estate in clear and decisive terms, such estate cannot be taken away or cut down by any subsequent words that are not as clear or decisive as the words creating the estate, and that any subsequent paragraph of the will tending in any manner to cut down such provisions is repugnant to the first provision and void. This undoubtedly was the law prior to the Revised Statutes, and to some extent and in some eases is still applicable.' Since the enactment of the Revised Statutes the trend of authority seems to be against any construction destroying a clause in a will which limits or cuts down a prior absolute gift. The most that can be said of the authorities cited by the respondent is that an absolute estate given in one part of a will in clear and decisive terms c'annot be cut down or limited by a subsequent part of the will, unless the subsequent part is expressed in equally as clear and decisive language as the part giving the absolute estate. The difficulty with the application of such authorities cited by the respondent to the will in question is that the terms of the 2d clause seem to be no less clear than those of the 1st. While the 1st clause gives to the daughter all of the property of testatrix, the 2d clause immediately thereafter limits such gift by a provision that if the daughter “ shall die without issue then and in that case I give and bequeath all of the estate received by her by virtue of this instrument and held by her at the time of her (decease) to the children of my brothers, Ward Bearse and Aaron Bearse, and to James M. Bearse, who is the son of my deceased brother, David Bearse, share and share alike.” Can there be any question that by these two provisions read together it was the intention of the testatrix to turn over to her daughter, Jennie, all of her estate, and that the same should vest in such daughter, subject to being divested as to such part thereof as the daughter might hold at the time of her decease without issue? What possible object could the testatrix have had, if it was her intention to give to the daughter an absolute estate in all of her property, to have included the 2d clause of her will ? Indeed, if it was1 the intention of the testatrix that her daughter should take all of her estate, said daughter being her sole heir at law and next of kin, was it necessary for the testatrix to make a will at all ? The statutes of the State would fully carry out such intention unassisted by any testamentary act. The provisions of the 2d clause certainly had some force or they would not have been included in the will. The law is elementary that it is the duty of courts in construing wills to include all parts of the will and to construe the same in relation to each other, and so far as possible to form one consistent whole. It was the evident intention of the testatrix to provide amply for her daughter, but if, upon the daughter’s death without issue she should still hold some part of the estate given her by said will, that such part of the estate should go to the relatives and next of kin of the testatrix rather than to members of her husband’s family. In other words, that the property which she had accumulaoted should go to her own blood relatives. If, in interpreting this will, we eliminate the word second,” following the 1st clause, and read the 2d clause as a part of the 1st, the intention of the testatrix is manifest. I cannot but believe that the testatrix intended that such disposition should be made of her property as the reading of the two clauses together would provide. It is a well-known principle of construction that every expression in a will should, if possible, be given some effect, and that a clause of a will is never rejected, except as it may be necessary to uphold another clause entirely irreconcilable thereto.

The case of Leggett v. Firth (53 Hun, 152; affd., 132 N. Y. 7) construes a will similar to that under consideration here. By the provisions of that will the testator gave, devised and bequeathed to his wife “ all the rest and residue of my real estate, but on her decease, the remainder, if any, I give and devise to my children * * * in equal shares.” The court held that the wife took a fee in the premises in question in that action, subject to the condition that the power of disposition should be exercised during her lifetime, and that under said will a valid and expectant estate passed to the children of the testator, liable only to be defeated by the exercise of the power of disposition given the wife during her lifetime.

In Terry v. Wiggins (47 N. Y. 512) testator, by his will, gave his wife certain real estate for her sole and absolute use and disposition, and also all his other property and effects for her own personal and independent use and maintenance with full power to sell and dispose of the same if she should require it or deem it expedient so to do. After the wife’s death, the executors were authorized to invest whatever residue there might remain of testator’s property for the benefit of a certain religious society. Testator died in 1862, and his wife six years later. She never disposed of any of the real estate, and her heirs brought action in ejectment to recover possession of the lands. The court held that the widow had a life estate only in the property, with a conditional power of disposal during her lifetime, and that the limitation over was not repugnant to the devise and was valid.

The case of Kurtz v. Wiechmann (75 App. Div. 26) considers the effect of a subsequent clause in a will destroying the plain provisions of a previous clause. In that case the testator devised his estate to his wife in fee simple absolute and with full power to sell and convey. The will also provided that “ after the death of my said wife, the remainder of my estate is to be divided in halves, one-half is to be divided between the legal heirs on my side, and the other half between the legal heirs of my wife’s.” The court held that the testator’s wife did not take an estate in fee simple absolute, but only a life interest therein, with the powers specified in the will. Mr. Justice Williams, writing in the case, said: “ The person who drew the will apparently did not appreciate fully the meaning of the terms used in the first part of the 3d clause, but, taking the two clauses together, we have no difficulty in understanding what was intended to be accomplished by the will. There is no legal rule which interferes with our giving effect to this evident intention of the testator. The only rule suggested is the one relating to the cutting down of an absolute estate given by the language of one part of a will by the language of a subsequent part thereof. This rule, correctly stated, however, is as follows: 1 When an absolute estate is given in one part of a will in clear and decisive terms, such estate cannot be cut down or limited to a life use by a subsequent part of the will, unless the part providing for a life estate is expressed in as clear and decisive language as the part giving the absolute estate.’ * * *

“ In this case the 4th clause expresses the intention to limit the estate of the widow to a life use and to give the remainder to other persons just as clearly as language can be made to do it. The rule referred to, therefore, in no way interferes with the construction given by us to the will.”

It seems to me that the same observations can well be made of the two provisions of the will of Izabenda Fulton now under consideration. While she does state in the 1st clause that she gives and bequeaths to her daughter Jennie all of her estate, both real and personal, of every kind and description whatsoever, by the 2d clause, in no less positive, clear and unambiguous terms, she provides that as to such part of her said property which the daughter shall receive under that will and which she may hold at her decease without issue shall pass to and become the property of the persons mentioned in said 2d clause.

To the same effect are the following cases: Matter of McClure (136 N. Y. 238) ; Mee v. Gordon (187 id. 400) ; Matter of Griffin (75 Misc. Rep. 441); Avery v. Everett (110 N. Y. 317); Van Derzee v. Slingerland (103 id. 47).

It perhaps is unfortunate that the question as to the interpretation of this will arises in the manner that it does in this proceeding, as nobody would probably be bound by the determination, save the executrix and the petitioner. It is not necessary for us to hold, it seems to me, just what estate the daughter took in the property of the testatrix, whether it was merely a life estate with a remainder over to the children of the brothers of testatrix, or whether it is within the power of the daughter to dispose of all of the estate which she received under the will prior to her decease, and thus cut off the petitioner and others of his class. All that is necessary for us to determine, it seems to me, is as to whether or not, under the terms of the will, the petitioner has some contingent interest in the property of the testatrix. I am convinced that he has such an interest. Whether such interest may be cut off by act of the daughter is not here important. The fact remains, in my judgment, that under the terms of the will the petitioner has a contingent interest in the property of testatrix. If so, he is entitled to an accounting.

I am of the opinion that the estate of the testatrix under her will vested in Jennie E. Brown, subject to being divested as to such portion thereof as might remain at the death of said daughter without leaving issue, said remainder, if any, under the terms of said will, passing to the children of the brothers of testatrix named in the 2d clause of her will; and that the petitioner is a person interested in the estate of said decedent, and entitled to the accounting demanded. The decree of the surrogate should be reversed and the matter remitted to Surrogate’s Court to proceed upon the petition filed.

All concurred.

Decree reversed, without costs, and matter remitted to the surrogate to proceed upon the petition filed with him.  