
    Matter of the Estate of Winfield Robbins, Deceased.
    (Surrogate’s Court, New York County,
    February, 1915.)
    Wills — direction as to disposition of all rest, rgsidue and remainder — where the language of is inexact or ambiguous — real meaning of testator — executors and administrators.
    Where the language of wills is inexact or ambiguous the courts frequently transpose or insert words or phrases, or even leave out or insert provisions in order to effectuate an intention that is with reasonable certainty to be gathered from the whole text of the instrument.
    The will of testator directed all the rest, residue and remainder of his estate put in trust for his brother during his lifetime; in case of the death of testator leaving no issue living and of the death of said brother said estate was given to three second cousins of testator, naming them, “ they to take such portion as they may deem necessary to build a town hall.” Said brother died seven weeks after testator bequeathing all his property to his wife who was also his sole executrix. Testator herein left him surviving no widow or children and said three second cousins were the executrices under his will. The widow of the testator’s brother, by a release containing no words of assignment, discharged the estate of testator herein and his executrices, their successors, heirs, executors and administrators from any and all demands, if any, which she had personally and as executrix and legatee under the will of her husband against the estate of his brother and his executrices, and thereafter she assigned to said executrices as individual grantees all her right, title and interest in the estate of testator herein.
    Held, that a literal reading of said testator's will did not express his real meaning, that what he really meant was that in case of his death without issue then and in that event and after the death of his brother the estate theretofore held in trust for him should go to said three second cousins.
    That the ancillary administrator of the goods, chattels and credits of a legatee under testator’s will took nothing under the release above mentioned and his objections to the account of the executrices of testator herein seeking to surcharge them with the amount of certain items, among others with the amount paid out for the erection of the town hall provided for by testator’s will, should be dismissed and the referee’s report sustaining them overruled and the account settled and allowed as filed.
    Exceptions to the report of a referee appointed to hear and determine all questions arising upon the judicial settlement of the accounts of executrices.
    Elbridge G. Duvall (Charles H. Beckett, of counsel), for executrices.
    Daniel J. Mooney (John B. Stanchfield and William M. Parke, of counsel), special guardian for ancillary administrator of estate of Edwin Robbins.
   Fowler, S.

This matter comes on upon exceptions to the report óf a referee appointed to hear and determine all questions arising upon the judicial settlement of the account of Caira Robbins and Eliza Parker Robbins, executrices of Winfield Robbins, deceased.

Upon the judicial settlement of such accounting of the executrices under the last will and testament of Winfield Bobbins, deceased, the special guardian of an incompetent and the ancillary-administrator of the goods and chattels which were of Edwin Bobbins appear and interpose objections. These objections are serious in their consequences and, as they have been sustained by the learned referee, result in surcharging the account of the executrices with the large sum of $274,230.51. This surcharge is composed of one item for an alleged overpayment for transfer taxes made to the states having jurisdiction over the decedent’s property; another item represents loss on the sale of securities, which are claimed to have been sold at an inadequate price; another item consists of an alleged overpayment for legal services, but the most important item is for $229,103.67, which it is held by the referee has been erroneously paid out by the accountants for the erection of a town hall in the Town of Arlington, Massachusetts, instead of to the contestants as next of kin. The testator’s will provided for the erection of such town hall.

At the outset the question arises for determination whether or not the objectants are entitled to urge their objections. The correct answer to this question depends upon a construction of the will of the testator, and also, under the claim of the objectants, upon the effect of a release hereafter mentioned. The will of the deceased is as follows:

‘11, Winfield Bobbins, of the City of New York, in the State of New York, do make and declare my last will and testament to be as follows:

“ First. I order and direct my executrices hereinafter named to pay all my just debts and funeral expenses, and in case of my death in a foreign land to purchase a plot in a Protestant cemetery in which to place my remains and cause to be erected over the same a monument to cost about ten thousand dollars.

,l Second. ■ I give and bequeath legacies as follows: To Edwin Robbins or his wife, ten thousand dollars; to Alvin Robbins, ten thousand dollars; to Ida Francis Robbins, thirty thousand dollars; to Eliza Parker Robbins, thirty thousand dollars; to Caira Robbins, forty thousand dollars and my personal effects of every description.

‘ ‘ Fourth. I give and bequeath to the Robbins ’ Library in the Town of Arlington, State of Massachusetts, the sum of twenty-five thousand dollars. The principal is to be kept intact, and the interest of said twenty-five thousand dollars to be devoted to the care, preservation and increase of my collection of prints. The disbursement of the interest of the fund and the supervision of my collection of prints to be under the sole control of Caira Robbins so long as she may desire.

Fourth. All the rest, residue and remainder of my estate, real or personal, of which I die seized and possessed or in any way or manner interested in or entitled to and wheresoever the same may be situated, I place in trust for my brother Milton Robbins during his lifetime.

“ Fifth. In case that I shall die leaving no issue ■ living and my brother shall have deceased also, I give, devise, and bequeath all the property and estate in . trust for my brother, Milton Robbins, to Ida F. Robbins, Eliza P. Robbins and Caira Robbins, they to take such portion as they may deem necessary to build a town hall in the Town of Arlington, Massachusetts, in memory of Amos Robbins, a citizen of New York, born in West Cambridge, the Town of Arlington agreeing to remove the Alvin Robbins house from off the present park site.

“ Sixth. I hereby nominate and constitute and appoint my cousins Caira Robbins and Eliza Parker Robbins to serve without bonds, and the survivor of them executrice of this my will.

‘ ‘ In witness whereof I have hereunto set my hand and seal this second day of October, one thousand nine hundred and seven. Winfield Robbins, [seal.]

‘ ‘ Signed, sealed, published and declared by the testator, Winfield Robbins, as and for his last will and testament in the presence of us, who at his request and in his presence and the presence of each other have hereunto subscribed our names as witnesses. Vincent Loeser, [seal.] 320 West 108th street, New York. Zenas E. Newall, [seal.] 101 North Broadway, Yonkers, N. Y.”

It will be incidentally observed that the testator erred in the numbering of the paragraphs of his holographic will. The testator died November 5, 1910. Milton Robbins, mentioned in the paragraph properly numbered “ fourth ” of the will of the decedent, survived the testator, but died seven, weeks thereafter. Milton Robbins left a will by which all of his property was bequeathed to his wife, Emma Robbins, who was also appointed the sole executrix. The testator left him surviving no widow or children, and therefore Milton Robbins was the nearest of kin. Caira Robbins and Eliza Parker Robbins, the executrices, and Ida F. Robbins, their sister, are second cousins of the testator.

On October 3,1911, the aforementioned Emma Robbins executed a release, which has been given in evidence. It provides as follows:

“Know all men by these- presents, that I, Emma Robbins, of New York, N. Y., in consideration of $1 and other valuable considerations to me paid by Eliza Parker Robbins and Caira Robbins, as they are executrices under the will of Winfield Robbins, do hereby, for myself, my heirs, executors, administrators and assigns, remise, release and forever discharge the estate of the said Winfield Bobbins and the said executrices, their successors, heirs, executors and administrators, from all claims and demands, if any, I have personally and as executrix and legatee under the will of Milton Bobbins against said estate of Winfield Bobbins and said executrices.

“ Witness my hand and seal this 3d day of October, 1911. Emma Bobbins. [L. S.]

“ In the presence of E. Gr. Duvall.”.

During the course of the proceeding the accountants offered also in evidence an assignment, dated May 7, 1913, by which Emma Bobbins assigns and sets over unto the executrices all her right, title and interest in the testator’s estate,■ naming the executrices as individual grantees. This instrument was excluded from evidence over the exception of the accountants. The exclusion was, I think, error.

The rights of the contestants and their standing in this proceeding are to be determined by a construction of the portions of the will before set out, as modified by the release and also the assignment, offered in evidence, in so far as it is properly to be considered.

The claim of the contestants is briefly this: That under paragraph fifth of Winfield Bobbins’ will, the residuary bequest did not vest in the legatees therein named upon the death of Milton Bobbins, because Milton Bobbins did not predecease the testator, and further, that as Milton Bobbins took a remainder interest as next of kin remaining after the life estate be- ' queathed to him, the release executed by his sole legatee and legal representative operated to the benefit of the contestants, who after said Milton Bobbins are the nearest of kin. That is, their contention is that under the will of Winfield Bobbins the remainder interest in the residuary estate was not bequeathed, and therefore Milton Robbins took the same as- next of kin, and thereafter when his legal assignee (or testamentary donee) released that interest by operation of law the testator’s cousins then took. Therefore, before such cousins can maintain their objections in this proceeding the will must be construed to result in a partial intestacy and the release must be given the legal effect of assigning to the cousins as next of kin what otherwise would be distributed to him whom the law recognizes as the next of kin.

The will of the testator is ambiguous. A literal reading thereof does not, I think, express the testator’s real meaning. He did not intend that the three ladies named in the fifth paragraph of the will should take only upon the double contingency of the testator dying without issue and his brother having predeceased him. In the fourth paragraph of the will the testator bequeaths the residuary estate in trust for the benefit of his brother during his lifetime, and in the fifth paragraph he indicates an intention that the residuary estate so bequeathed in trust should go to Ida F. Robbins, Eliza P. Robbins and Caira Robbins. The words “ and my brother shall have deceased also ” do not, I hold, indicate an intention to make the death of the brother prior to the testator a condition precedent of tha bequest to the three ladies named in the fifth paragraph. The only effect that those words have is to reiterate that the bequest in the fifth paragraph is a remainder interest. It certainly would be a senseless disposition for the testator to say in the fourth paragraph of his will that he gives Milton Robbins a life interest and then in the fifth paragraph to provide that the property which had been so given in trust for Milton Robbins should go to some one else, only if Milton Robbins did not survive the testator; upon that other contingency no trust estate would come into existence, and the words all the property and estate in trust for my brother Milton Robbins ” would have to be deemed mere surplusage. What testator really meant was that in case of his death without issue, then and in that event after the death of the brother the estate theretofore held in trust for the brother should go to the three ladies named.

Where the language of wills has been inexact or ambiguous the courts frequently transpose or insert words or phrases, or even leave out or insert provisions in order to effectuate an intention that is with reasonable certainty to be gathered from the whole text of the instrument.

Dreyer v. Reisman, 202 N. Y. 476. See; also, Phillips v. Davies, 92 N. Y. 199.

It would therefore seem that the contestants in this proceeding are not in any way interested in the distribution of the decedent’s estate. But even were contestant’s construction of the will adopted, the same conclusion would follow. The instrument of release contains no words of assignment. In order to give the contestants any interest in the estate that instrument must be construed to have the effect (assuming that there was a partial intestacy) of transferring and assigning the distributive share of Milton Robbins as next of kin to collaterals next further removed from the testator. In Amherst College v. Ritch, 151 N. Y. 282, 338, the Court of Appeals pointed out the distinction between an instrument of release and an assignment and said that where the word “ release ” is used in connection with claims ” it never has any other meaning than that of waiver, surrender or relinquishment, and that no right of action could pass by a release of that nature. The release by its terms does not purport to release any claim which the releasor has as next of kin. Even if it be construed as an assignment, it is not broad enough to .transfer a distributive share as next of kin. There is a broad distinction between the interest which a party has under a will and .that which he has as next of kin, and a release effective for one purpose would not be sufficient for the other. For example, in Matter of Andrews, 104 App. Div. 622, the Appellate Division for the First Department held that a release of an interest by way of legacy did not estop the legatee from asserting a claim as next of kin.

In order to sustain the contention of the contestants the construction of the instrument as a release Avould not be sufficient. The mere release to the executrices of the claim of Emma Bobbins would not per se transfer that portion of the estate as to which there is an intestacy to the contestant. The cousins are not next of kin. The failure of the testator to dispose of his entire estate would give such portion not disposed of to the next of kin and only to those who are such at the time of the death of the testator. It is well settled that those only are next of kin who are such at the date of the death of the testator. Clark v. Cammann, 160 N. Y. 315; Doane v. Mercantile Trust Co., id. 494; Simonson v. Waller, 9 App. Div. 503. And this is so even if the tenant for life under the will is the sole next of kin. The release executed by the brother’s representative "and sole legatee did not exclude him from being the next of kin and could not make the cousins stand in that relation. The statute operated once and could not be invoked a second time. In short, the only manner in which the representative of the brother could dispose of his distributive share would be by an assignment, and, as above stated, the release should not be deemed an assignment.

The distinction between a release by a legatee under a will and a release by one of the next of kin, where there is no will, is marked. Where a legatee releases the residuary or where there is not a sufficient residuary clause the next of kin take; in the one case by virtue of the will and in the other case by the operation of law through intestacy. But where there is no will the release by next of kin, in order to devolve the •share released upon another, must operate as an assignment, because the law does not construe a release as an assignment. The case of Matter of Wolfe, 179 N. Y. 599, and Matter of Cook, 187 id. 253, well illustrate the distinction between an instrument which is sufficient operating as a release and one which can be sufficient only if operating as an assignment. In the report in Matter of Wolfe in the Appellate Division (89 App. Div. 349, 354) the court says: “It may well be that a different question would be presented by a transfer operating under the laws of inheritance or descent. In such a case the transfer is effected by operation of law and calls for no act of volition on the part of the heir or next of kin.” In short, the difficulty in giving the release the effect urged by the contestants is that there is no rule of law which enlarges the release into an assignment. If the contestants take nothing under the release, it is perhaps unimportant to consider the second instrument purporting to be an assignment, but it would seem, no rights háving intervened, that the second instrument may be given effect according to its tenor.

- The accountants moved to dismiss the objections and they are dismissed and the referee’s report is overruled; ■' The account and supplemental account are settled, allowed And adjusted as filed. .

Decreed accordingly. .. ,  