
    In the Matter of the Will of Margaretha Graber.
    
      (Surrogates Court, New York County,
    
    
      Filed February 8, 1889.)
    
    1. Will—Probate of—Intent of testator—From what to be sought.
    The intent of a testator is to Tie sought from the writing and from the known meaning and force of the words used, and not by resorting to conjecture or assumption. The question is not what the testator had in contemplation when he made the will, but what the words used will embrace according to their ordinary signification.
    2. Same—Probate must be granted upon whole estate.
    The estate represented the earnings of the testatrix’s husband deposited in six different savings banks in the name of the wife. All of their children had died. There was proof that the testatrix believed that the moneys in four of the banks were the property of her husband. Held, that the surrogate could not refuse probate as to a portion of the estate, but must grant probate upon the whole, and the contestant must be relegated to another tribunal for relief.
    
      Frederick Wm. Holls, attorney for proponent; Gwillin & Meyers, for contestant; Wm. H. Hamilton, for special guardian.
   Ransom, S.

—So question is raised in this matter as to the formalities of execution or competency of testatrix. Contestant claims that it does not represent her intentions.

The testatrix was a woman of middle age who had been for many years an invalid; her husband was a mechanic, and the estate represents the savings from his earnings, which had been deposited in various savings banks, in the wife’s name. All of their children had died.

It is claimed by counsel for the contestant, that the will of the testatrix was intended to refer to but two of the bank books, and that as to the balance of the funds represented by the four other bank books she was not the owner, but that they belonged to her husband, and that as to those she died intestate.

While there is probably sufficient proof to warrant a finding that the testatrix believed that the moneys represented by the four other books were the property of her husband, no grounds are stated, and no facts proven to show a reason for the distinction between them and the other two. The manner in which the funds were deposited is identical. They came, as far as proven, from the same source; and if the husband is found to be the owner of the four, he must be the owner of all.

It is abundantly proven that the draftsman followed the instructions given to him at the time of the drawing and execution of the will.

The case of Burger v. Hill (1 Brad., 364), is strongly relied upon by contestant as sustaining his claim. In that case the testator devised all his real estate to his mother and sisters and gave all his personal estate to his mistress for life, with remainder to her daughter, who was his illegitimate child. The draftsman asked him if he had any real estate, and he replied that the store in which he carried on business, he owned. It subsequently appeared by paroi evidence that this property, which he supposed to be real estate, was in fact leasehold, and consequently personal estate; and the surrogate excepted from the decree of probate that property, as to which he declared he died intestate; so that the mother and sister, whom testator supposed would receive this property as real estate under the will as drawn, received it as next of kin.

In that case the surrogate really determined upon a question of mistake or error relating to the factum of the instrument, and decided that were it necessary to correct an error in order to meet the intention of the testator, probate may be limited to particular assets.

In this case there is no question of mistake or error as to the factum of the will. The instructions were clear that the testatrix wished to leave everything she possessed to her sisters and nieces.

It is not established whether the testatrix considered her will applied to the moneys represented by all the bank books, or only the two; but in either event this court could not refuse probate entirely or as to a portion of her estate.

Suppose the testatrix believed all the moneys belonged to herself, would it be claimed that the property would not pass by this will, and that the contestant would not be relegated to another tribunal for relief?

Suppose she believed all the moneys were not her own, and that, as matter of fact, it was her impression that the will applied only to the two bank books, will it be contended that this court, in a proceeding for probate, may enter a decree establishing a trust resulting from the manner in which the other funds were deposited?

I cannot perceive in what manner any hardship is inflicted upon the contestant by admitting the will. The same proof which he claimed entitles him to relief in this court denying probate as to a part of the assets, in another tribunal would establish that the funds were really held in trust for, and belonged to him.

But all this rests upon mere conjecture and assumption. The intention of the testatrix is to be sought from the writing and from the known meaning and force. of the words used, instead of resorting to conjecture. There are well established rules of construction which cannot be violated from a suspicion that if the testatrix had foreseen the consequences of her disposition, she would have pro- , vided otherwise. “ The question is not what the testatrix had in contemplation when she made the will, but what the words used will embrace according to their ordinary signification, which must prevail unless qualified by other expressions in the instrument.” Sweet v. Geisenhainer, 3 Bradford, 122.

Let a decree be presented admitting the will.  