
    In the Matter of the Probate of the Last Will and Testament of Julia Downey Delaney, Deceased. Julia Downey and Others, Appellants; Julia Quinn and another, Respondents.
    Second Department,
    June 11, 1909.
    Will —construction — personal property — lack of residuary clause — specific legacy.
    In construing a will the intention of the testator must control if it can be gathered from the will and the circumstances existing and surrounding its execution.
    Where a testatrix, whose property consisted of three houses and a small amount of personalty kept in her dwelling house, by a will which had no residuary clause, devised one house to each of her three nieces and giving all her personal property of whatsoever sort in her dwelling house to one of the nieces, and later sold one of the houses, deposited the money and retained the pass books in her dwelling house until her death, the proceeds of the sale do not go to.the niece to whom the personalty was bequeathed, but as to such money the testatrix died intestate.
    The entire estate having been disposed of at the time the will was executed, the absence of a residuary clause did not indicate an intention that the proceeds of the sale should pass to the niece to whom the personalty in the dwelling house was bequeathed.
    As to specific legacies, a will speaks as of the time of its execution, and a legacy is made specific by the designation of the special location of the property as well as by the use of other language.
    Appeal by Julia Downey and others from a portion of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 27th day of August, 1908, admitting to probate the last will and testament of Julia Downey Delaney, deceased, and also from an order entered in said Surrogate’s Court on the 1st day of September, 1908, amending the said decree,
    
      
      Gilbert W. Minor, for the appellants [Clark A. Wick, attorney for Julia Downey and others, and Henry Herdling, attorney for Catherine Downey].
    
      Henry E. Heistad, for the respondents.
   Rich, J.:

The contention of the parties in this case arises over the construction of the 2d clause of the will of Julia'Downey Delaney, deceased, which was executed on June 23, 1902. At that time the testatrix was the owner in fee of three houses and lots in Brooklyn, household furniture, personal belongings, a deposit of about $1,000 in the Dime Savings Bank of Brooklyn and a small balance in the South Brooklyn Savings Institution. The bank pass books and the personal property were in her residence,.No. 219 Warren street, at • which place she resided and conducted a boarding house. By her will she devised the' house and lot known as No. 91 Warren street to the appellant .Julia Downey, a niece; the house and lot known . as No. 139 Degraw street to the appellant Catherine Downey, a niece; and the property which she occupied, 219 Warren street, to the respondent Julia Quinn, a niece. ' The 2d clause of the will is as follows: u Second. I give and bequeath unto my niece,-Mrs. Julia Quinn, all the household furniture and personal property of whatsoever kind in my dwelling house known as No. 219 Warren Street, in said City of Brooklyn, to her own use forever.” The will disposed of all the property owned by the testatrix at the time of its execution and contained no residuary clause. In October or November, 1904, about a year and a half after the will was executed, the testatrix sold the Degraw street property which she had devised to Catherine Downey, and deposited the proceeds, as well as other money, to the credit of her account in the banks mentioned, and the pass books were in her possession, at her residence No. 219 Warren street, at the time of her death, together with $271 in money and some jewelry. The appellants’ contention is that the money evidenced by the bank pass-books, the cash on hand and the jewelry did not pass to the respondent under the 2d subdivision of the will; that as to such property the. testatrix died intestate, and that the will should be so construed as to give the proceeds of the sale of the Degraw street house, said money and jewelry to the decedent’s next of kin. This contention the learned surrogate overruled, and held that -said property was included in the 2d clause of the will, and passed to the respondent under its provisions. From the decree accordingly entered this appeal is taken.

Counsel for the appellants cite Ludwig v. Bungart (33 Misc. Rep. 177), and argue that the words “personal property” in said 2d clause do not include the money in the banks, the money in the house or the jewelry, but the learned surrogate distinguishes that case from the one at bar by saying that in the former case the will contained a residuary disposition, which is lacking in the case at bar, and bases his decision largely on Matter of Reynolds (124 N. Y. 388), in which the question presented was whether bank pass books, securities of different kinds and money, found in a' vault connected with the testator’s office, passed under a devise of the building “ including all the furniture and personal property in and upon the same, or in any manner connected therewith,” the will containing a residuary clause. After considering a large number of authorities, Judge Parker, writing for the court, says: “ Applying then the rule of construction deducible from the authorities, it may be conceded that if there were no residuary clause in the will so that as to the money and securities of the amount and value of twelve thousand dollars, Abelard Beynolds would have died intestate, unless it should be held to have passed by the bequest the words 6 and personal property in and upon the same or in any manner connected therewith’ would be given the most comprehensive meaning of which they are susceptible for the purpose of preventing intestacy as to a portion of the estate. • But there is a residuary clause * * * which requires the general words in the bequest to Mortimer F. Beynolds to be limited to things, ejusdem generis.” I do not consider that this case, or any of the cases cited by the learned counsel for the respondents, establishes a rule under winch we are precluded from determining the question presented in the case at bar, by' other legal principles. It is a primary rulé of construction that the intention of the testator nrast control, if it can be gathered from the will and the circumstances existing, and surrounding its execution. - The personal relations of the testatrix with her three nieces are shown to have been equally intimate, kindly and affectionate prior to and at the time the will was executed, and they are not shown to have in any manner changed thereafter. Julia Downey was the daughter of á deceased brother, and made liér home with the testatrix from the time she was thirteen years of age until within about a month before the death of her aunt. Catherine Downey is a sister of Julia; she came to América about eleven years before decedent’s death, arid at different times lived with her aunt, took care of her house and boarders, collected rents and attended ■to her business generally while she was'abroad in 1902 in company With J ulia. J ulia Quinn is the daughter of another deceased brother, and lived with her aunt for eight or. nine months prior to the death of the latter. At the time the will was executed Julia Quinn and Catherine DoWney lived in their aunt’s house, 139 Degraw street, and Julia Downey lived with her aunt in the house off the latter, 219 Warren street. I think it is clearly established that- it was the intention of the testatrix to divide her real property between her three nieces, giving to each a. house and lot, and the small residuum of her money, left after deducting the expenses of her trip abroad, with her other personal property, to Julia Quinn, and that there was no intention to disinherit either or leave either unprovided for. Her entire estate at the time the will Was executed was dis-. posed of. There, was no necessity for a residuary clause, and its absence under the circumstances does not indicate an intention of the .testatrix that the avails of sale of one of the houses devised to a niece, although shown by a bank pass book which happened to be left in the house deviséd to. Julia Quinn, should pass to her to the ’ exclusion of the niece to whom the property had been devised. - (Ludwig v. Bungart, supra.) The testatrix cannot be held to have intended, when she executed her will, to sell the real property devised to either Julia or Catherine. Downey and give the proceeds thereof to Julia Quinn, to the entire. exclusion of these devisees, leaving both or either • entirely unprovided for. That such could. not have been her intention is plainly apparent, and the words and personal property ¡of whatsoever kind” in the 2d subdivision should no.t be so construed as to produce such a result.

There is another equally applicable arid controlling principle governing the construction' of this will. The bequest, contained in the 2d clause is a specific, and not a general one.- It does not. pu'rpoi-t to dispose of idl -the personal property the decedent might own at the time of her death, but only such portion thereof as was then in one of her several houses, and a bequest is made specific by the designation of a special location of the property, as well as by the use of other language. (18 Am. & Eng. Ency. of Law [2d ed.], 716, and cited cases; Getman, v. McMahon, 30 Hun, 531.) As to specific legacies, the rule is well established that a will speaks as of the time of its execution.

As to the proceeds of the sale of the Degraw street house, I am of the opinion that the decedent died intestate, and that such proceeds upon her death passed by descent to her next of kin.

The decree of the Surrogate’s Court in so far as appealed from must, therefore, be reversed, and proceedings remitted to the Surrogate’s Court for disposition accordingly, and the order revoking administration, and appointing administratrix with the will annexed, is affirmed, with costs to the appellants payable put of the fund.

Hirscjhberg, P. J., Woodward, Burr and Miller, JJ., concurred.

Decree.of the'Surrogate’s Court of Kings county in so far as appealed from reversed, and proceedings remitted to the Surrogate’s Court for disposition in accordance with opinion, Order revoking administration and appointing administratrix with the will annexed affirmed, with costs to the appellants payable from the fund.  