
    Rebecca Gallagher et al., App’lts, v. Susan Crooks et al., Resp’ts. (2 Cases.)
    
      (Court of Appeals, Second Division,
    
    
      Filed April 19, 1892.)
    
    
      A. Will—Clause op disinheritance.
    By the will of G., lie gave liis wife a life estate, subject to a weekly allowance to his brother John if he should be unable to maintain himself; the remainder, after her death, to be equally divided between the children of John Grady and all testator’s relatives by his father’s side that were in the United States at the date of his will. He expressly cut off from inheritance the wife of his brother John, and any person related to her by blood or marriage. Held, that the clause of the will by which testator attempted to disinherit his brother, his wife and their descendants, did not defeat their right to the estate unless the persons to whom the testator attempted to devise the remainder were in existence.
    53. Same—Evidence.
    The widow testified that she knew John Grady, nephew of testator; that he had been dead several years; that he never married, and left no children; that she was familiar with the history of the family of her husband and of his father, and that she had heard the father, John Gallagher, say that he was the only child of his parents who died in Ireland, and that he had no relatives living. Her evidence was corroborated by her sons. Held, sufficient if uncontradicted to establish the fact that testator had no relatives living in the United States at the date of his will or death.
    •Appeals from judgments of the general term of the supreme •court of the first judicial department, which affirmed judgments ■dismissing the complaint on the merits, entered on nonsuits.
    
      Robert O' Byrne, for app’lts; R. B. Cwillim, for resp’ts.
    
      
      
         Reversing 32 St. Rep., 1098.
    
   Follett, Ch. J.

Action Ho 1, ejectment, was brought to recover a lot in the city of Hew York known as Ho. 325 Third ■ street, of which James D. Gallagher died seized.

Action Ho. 2, ejectment, was brought to. recover a lot in said •city known as Ho. 34 Scammel street, of which James D. Gallagher died seized.

He left a will executed April 16, 1843, which was duly probated January 29, 1845, by which he devised all of his realty .and. bequeathed all of his personalty to his widow, Ellen Gallagher, ■during life, subject to the payment of three dollars per week (before his widow’s death), for the support of his brother John. H. ‘Gallagher, if he should be unable to maintain himself. After the ■death of the widow he directed that $1,000 should be paid to the Roman Catholic Orphan Asylum; $1,000 should be divided between Edward Harrigan and Bernard Harrigan; and he authorized his widow to bequeath $1,000 to any person she might see fit; “ the remainder, if any, to be equally divided between the children of John Grady and all my relations by my father’s side” that were in the United States at the date of his will, subject to the payment of four dollars per week (after his widow’s death), for the support of his brother John E. Gallagher, if necessary for his maintenance. The will contains the following clause: “ He ■(John H. Gallagher) is to have nothing from my property, and I hereby cut off from inheriting anything or property of mine his wife (Rebecca), or any person in any, way related to her, either by blood or marriage, with the exception of himself, and he only in the way I have stated above.”

It seems to be undisputed that in 1798 John Gallagher emigrat-ed from Ireland to the United States, and soon thereafter became a resident of the city of Hew York where he and Catharine Gallagher intermarried, at which city he died in 1836, leaving his widow and two sons, James D. Gallagher and John H. Gallagher, both born in Hew York, who were his only heirs. About 1842, Catharine, the widow of John and the mother of James D. and ■ John H, died. In 1833, John H. Gallagher and Rebecca Hoe intermarried at the city of Hew York, where they resided as husband and wife until December 4, 1875, when he died leaving Rebecca, his widow, John H., Thomas B., Catharine F., Rebecca T. .and Mary L., his children and only heirs. Mary L. and Charles A. Hammer intermarried and subsequently both died leaving Charles A. Hammer and Horman Hammer, their children and •onljr heirs. Ellen Gallagher, the widow of James D., the. testator, died July 1, 1879.

These actions were begun in 1886 by the heirs of John H. Gallagher, who claimed the fee of the lots, and by Rebecca Gallagher, his widow, who claims a dower right' in them. The defendants answer that Susan Crooks and John Crawford were lawfully seized of both lots in fee, but how they acquired title, if any they have, or possession of the lots, is not disclosed by the answers nor by the evidence. The other defendants are tenants of Crooks and Crawford.

The clause in the will above quoted, by which the testator .attempted to disinherit his brother, his wife and their descendants, does not defeat the right of these plaintiffs to the estate unless the persons to whom the testator attempted to devise the remainder were in existence.

In case a testator fails to make a legal devise of his realty, or if, having legally devised it, the devise fails for any cause, the heir will inherit, notwithstanding there is an express provision in the -'.will that he shall not take any part of the estate. There must be a legal devise to cut of the right of the heir to inherit; mere words of disinheritance are insufficient to effect that purpose. Haxtun v. Corse, 2 Barb. Ch., 521; Chamberlain v. Taylor, 105 N. Y., 185, 193; 7 St. Rep., 525; Fitch v. Weber, 6 Hare, 145; Pickering v. Stanford, 3 Vesey, 493; Johnson v. Johnson, 4 Beav., 318; 2 Jar. Wills, Bigelow’s Ed., 841; 1 Red. Wills, 4th Ed., 425. To entitle the plaintiffs to recover they were bound to establish (1) that John Grady left no children; (2) that the testator had no-relatives by his father’s side in the United States at the date of his will or at the date when the devise of the remainder took effect. These were the facts in issue.

Rebecca Gallagher, the widow of John U., who was seventy-nine years of age when her deposition was taken, testified that she knew John Grady, a nephew of the testator’s wife, and that he-had been dead several years, that he never married, and left no children. This witness also testified that she was familiar with tlie history of the family of her husband and of his father, and. that she had heard the father, John Gallagher, say that he was the only child of his parents, who died in Ireland, and that he had no relatives living. Her evidence was corroborated by' her sons. ”

If this testimony is true, and it was not contradicted, the testator had no relatives living in the United States at the date of his will or death, unless he intended that the words ‘ all my relations by my father’s side ” should include the descendants of his great grandfather, or of some more remote ancestor. It was" not. shown whether the great grandfather left any descendants other than those in the line of the testator’s family, but it was shown that the plaintiffs are all of the descendants of the testator’s-father. Accepting the Mosaic account of the origin of the human race, the testator must have had at the date of his will and at the date of his death collateral relatives on his father’s side, of some degree, in the United States. But such a broad interpretation of the meaning of the word “relations” would render the-devise void for indefiniteness, and it is well settled that the word, when used in wills relating to personalty only embraces persons within the statute of distribution. Edge v. Salisbury, 1 Amb., 70; Crossly v. Clare, id, 397; S. C., 3 Swanst., 320; Harding v. Glyn, 1 Atk., 469; and cases cited in Sander’s note; Goodinge v. Goodinge, 1 Ves., Sr., 231; Varrelly. Wendell, 20 N. Y., 431; Ennis v. Pentz, 3 Bradf., 382; Eagles v. Le Breton, L. R., 15 Eq., 148; Hibbert v. Hibbert, id, 372; 2 Jar. Wills (Big. ed.), 120; 2 Red. Wills (3d ed.), 85; 2 Wm. Ex. (6 Am. ed.), 1205; 4 Kent’s Com. (13th ed.), 537, note A. But whether in case, of a devise the word “relations” embraces only persons within the statute of distribution, as was held in Doe v. Over, 1 Taunt., 263, or only the class within the statute of descent, we will not now decide.. The English cases cited, which relate to devises, arose before, the-English statute of descents, 3 & 4 Will. IV., 106, and when the descent of realty in that country was determined by’the rules of the common law. 1 Steph. Com. (8th ed.), 387; Will. Real Pr. (12th ed.), 100. While the evidence does not make the existence--of relatives of the testator by the father’s side in the United States which were within the classes embraced within the statute of distribution or the statute of descents impossible, it does render the existence of such persons improbable.

It is seldom possible to demonstrate or establish to an absolute certainty the existence or the non-existence of the facts at issue between litigants, and the law does not require such a high degree of proof, but such evidence as renders the existence of the facts in issue, and upon which the right to recover depends, probable, is sufficient to require the party who denies their existence to sustain his denial by evidence. Certainty is not required to convict persons of criminal offenses. We think from the evidence that it is probable that no persons of either class, mentioned In the testator’s will, were in existence at its date, or have been ■since, and that the plaintiffs made out a prima facie case.

The judgments should be reversed and new trials granted, with ■costs-to abide the event.

All concur.  