
    In the Matter of Proving the Last Will and Testament of Ursula A. Kent, Deceased. Betsey C. Adams, Contestant, Appellant; Trust and Deposit Company of Onondaga, as Executor, etc., of Ursula A. Kent, Deceased, and Others, Respondents.
    Fourth Department,
    October 6, 1915.
    Will—probate — evidence as to contents of paragraphs cut from will by testatrix — hearsay—res gestee — when subsequent motion to strike out incompetent evidence should be granted — attempted cancellation of particular clauses of will — effect of failure to establish contents of portion of clauses cut from will.
    Where in a proceeding for the probate of a will it appears that the testatrix during her lifetime had cut and completely removed a paragraph containing a money legacy, and also a part of the residuary clause, and that these portions of the will have not been found, evidence by a neighbor of the testatrix based upon a conversation with her about three months after the date of the will, as to the contents of the missing parts, is hearsay, incompetent and no part of the res gesta.
    
    The fact that such testimony was not objected to when offered is no objection to a subsequent motion to strike it out, where it appears that the proponent of the will was in no way prejudiced by the delay, or that if the objection had been seasonably made it could have been at the time obviated, or other evidence produced to prove the contents of the missing parts.
    Even if the testimony of the neighbor of the testatrix had been competent, it was insufficient to establish the contents of the missing clauses of the will, where the only other testimony was that of the attorney who drew the will, who could only remember that the one clause contained a money legacy for some amount “in the thousands” in favor of a certain beneficiary.
    If, upon a new trial, which must be granted, the contents of the missing parts are established the will should be probated, including the missing parts; but if such parts are not established then the portion of the will which remains should be probated.
    Since attempted cancellation of particular clauses of a will by them obliteration is ineffectual to revoke such clauses, the remaining portion of the will may be probated, even if the contents of the obliterated parts cannot be ascertained, unless it can be seen that the missing parts will affect or alter the remaining parts.
    If the contents of the portion of the residuary clause cut from the will in question cannot be ascertained, then there will be intestacy as to this portion of the residue, for a lapsed or ineffectual gift of a portion of the residue does not fall into or become a part of the remaining residue.
    
      If the money legacy cut from the will fails because its amount and donee cannot be ascertained, such unknown amount will sink into the residue as in the case of a lapsed legacy.
    Robson, J., dissented.
    Appeal by Betsey C. Adams, one of the heirs at law and next of kin of Ursula A. Kent, from a decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said Surrogate’s Court on the 4th day of February, 1915, admitting to probate a paper propounded as the last will and testament of Ursula A. Kent, deceased, including missing parts thereof which the surrogate found had been cut from the will by the testatrix in her lifetime, without intent on her part to revoke the whole will but only the parts so eliminated.
    
      Daniel A. Pierce, for the appellant.
    
      Joseph B. Murphy, for the respondents Ross King and others.
    
      A. H. Cowie, for the respondent Trust and Deposit Company of Onondaga, as executor.
   Foote, J.:

On March 9, 1911, Ursula A. Kent made her last will and testament consisting of fourteen separately numbered paragraphs. A few days after her death on July 10,1913, the will was found locked in the drawer of a bureau in what had been her sleeping room. It then appeared that the paragraph numbered 6th, and a part of the paragraph numbered 10th, being the residuary clause, had been cut and completely removed from the will.

The learned surrogate has found as a fact that those clauses if cut from the will by the testatrix in her lifetime was with the intention of revoking such clauses only and not of revoking the will as a whole. He has also found that the 6th clause contained a legacy of $2,500 each to Boss L. King and Bruce L. King, and that the missing part of the 10th or residuary clause gave to each of these men one-fourth of the residue of her estate. He has held as matter of law that the cutting of these two clauses from the will did not effect their revocation, and he has admitted the will to probate, including the missing clauses, as he finds their contents to have been.

Betsey 0. Adams, one of the heirs at law and next of kin of testatrix, filed exceptions to the surrogate’s findings of fact as to the contents of the missing clauses, on the ground that there was no evidence to support such findings, and to the conclusions of law, and has appealed to this court both upon the law and the facts.

The missing parts cut from the will have not been found. Mr. Cook, the attorney who drew the will, could recollect that the missing 6th clause contained a money legacy for some amount in favor of Boss King and that its amount was “ in the thousands; ” further than this, he had no recollection as to the contents of the missing parts. The testimony upon which the learned surrogate based his finding as to the contents of these missing parts was given by Margaret Gibbs, who was housekeeper in a college fraternity chapter house next door to Mrs. Kent’s residence. She had known Mrs. Kent for about six years and was on friendly terms with her. They saw each other frequently at one house or the other. Mrs. Gibbs testifies that about.three months after the date of the will at Mrs. Kent’s house Mrs. Kent told her that she had, by her will, left a legacy of $2,500 to Boss King and the same amount to his brother, Bruce King, and they were to have one-fourth of what was left after the other legatees were paid. She also testifies that there were several other similar conversations before Mrs. Kent’s death in which Mrs. Kent made the same statement in substance.

No objection was made to this testimony by appellant’s-counsel at the time it was given, but at a subsequent hearing, before the submission of the case, a motion was made to strike it out as incompetent and no part of the res gestee. This motion the surrogate denied “for the present,” with a statement that “ Before disposing of the case or at the time of disposing of it, if I think it should be struck out, I may then do so.” In his written opinion (89 Mise. Bep. 16) the surrogate holds that the objection to Mrs. Gibbs’ testimony came too late and for that reason adhered to his ruling refusing to strike it out. On that testimony, with the testimony above referred to of Mr. Cook, he has based his findings as to the contents of the missing parts of the will.

The testimony of Mrs. Gibbs was clearly hearsay and incompetent. (Smith v. Keller, 205 N. Y. 39; Lipphard v. Humphrey, 209 U. S. 264; Matter of Kennedy, 53 App. Div. 105; 167 N. Y. 163; Clark v. Turner, 50 Neb. 290; 38 L. R. A. 433 and note.)

If this testimony had been objected to when offered, it would have been the duty of the surrogate, in view of the above authorities, to sustain the objection and exclude the testimony. It is not claimed that the proponent of the will was in any way prejudiced by the delay in making the objection, or that if the objection had been seasonably made, it could have been at the time obviated or other evidence produced to prove the contents of the missing clauses of the will. Under these circumstances, we think the surrogate should have granted the motion to strike out Mrs. Gibbs’ testimony. (Miller v. Montgomery, 78 N. Y. 282.)

We are also of opinion that the testimony of Mrs. Gibbs, if allowed to remain in the case, is not of sufficient probative value to support the findings as to the contents of the missing clauses, and that the surrogate’s findings of fact numbers 5 and 6 as to the contents of the missing clauses should be disapproved.

These conclusions will require a new trial where the contents of the parts excised from the will may be shown by competent evidence. In that case the will should be probated including the missing clauses as still a part of the will and unrevoked. (Lovell v. Quitman, 88 N. Y. 377, and cases collected in note to Hartz v. Sobel, 38 L. R. A. [N. S.] 797.) In case such evidence is not forthcoming, then we think that part of the will which remains should be probated.

The general form of the will is such that it is reasonably apparent that the missing 6th clause contained a money legacy, as did those which precede and follow it. The estate is large enough (over $30,000) to pay all the legacies and leave more than one-half for the residuary. There is an imperative direction to convert the real property into money and it must be construed as a will of personalty. If the 6th clause fails, the only effect is to increase the residue. The part of the 10th or residuary clause which remains and was not cut out gives one-quarter of the residue to the Syracuse Home Association and one-quarter to the Onondaga County Orphan Asylum.

In jurisdictions where, like our own, attempted cancellation of particular clauses by their obliteration is ineffectual to revoke such clauses, the weight of authority seems to favor the probate of that part of the will which remains, even if the contents of the obliterated parts cannot be ascertained, unless it can be seen that the missing parts would affect or alter the remaining parts, while in jurisdictions where obliteration of a clause operates to revoke it, as in England, the remainder of the will stands exactly as if the revocation had been by codicil. (Tarbell v. Forbes, 177 Mass. 238; Matter of Miles, 68 Conn. 237; Doherty v. Dwyer, 25 L. R. Ir. 297; Woodward v. Goulstone, L. R. 11 App. Cas. [1886] 469; Matter of Patterson, 155 Cal. 626; 26 L. R. A. [N. S.] 654, and cases cited and reviewed in note.)

It is evident that one-half the residue was given by that part of the 10th clause which is missing. If its contents cannot be ascertained, then there will be intestacy as to this one-half of the residue, for a lapsed or ineffectual gift of a portion of the residue does not fall into or become a part of the remaining residue. (Kerr v. Dougherty, 79 N. Y. 327; Beekman v. Bonsor, 23 id. 298; Booth v. Baptist Church, 126 id. 215; Howland v. Clendenin, 134 id. 305.) It would seem, however, that if the legacy in the missing 6th clause fails because its amount and donee cannot be ascertained, the effect should be that its unknown amount would sink into the residue as in the case of a lapsed legacy. (Matter of King, 200 N. Y. 189; Langley v. Westchester Trust Co., 180 id. 326, and other cases cited in the valuable note to Galloway v. Darby, 44 L. R. A. [N. S.] 782.)

We should have no doubt of the application of the rule of these cases, prevailing as it does in England and most of our States, were it not for the recent decision in Osburn v. Rochester Trust & Safe Deposit Co. (209 N. Y. 54). The will in that case contained a general residuary clause. Some time after it was made the testatrix executed a codicil, by which she gave a legacy of $1,000 to a church corporation not mentioned in her will. Before her death testatrix destroyed this codicil with intent to revoke it, but not to revoke the will. The principal question in the case considered in the opinion and in briefs of counsel was as to whether the destruction of the codicil animo revocandi revoked the will. It was held that it did not. But as to the effect of the codicil and its revocation upon the residuary clause of the will it was said: “ When the codicil modified the will by providing for an additional legacy before creation of the residuary estate it modified and revoked the will to that extent. This revocation was consummated at the moment when the codicil was executed and published and thereafter the will was to that extent annulled. After this revocation had thus been consummated by the execution of the codicil the will could not be restored to its original form and tenor simply by the revocation of the codicil. A revocation of the revocation could not thus be accomplished. The . effect of this is that the testatrix died intestate as to one thousand dollars.”

It appears from the briefs of counsel that the attention of the court was not called to the numerous American and English cases and text books where the rule is stated to be in substance that a testator is presumed to intend a general residuary clause as a sort of a “catch all” to absorb all invalid, ineffectual or lapsed legacies or devises, and that legacies and" devises are given away from the residuary legatee or devisee only for the benefit of the particular legatee or devisee named, failing which for any cause the intention is not intestacy but absorption into the residue. We quote from 1 Jarman on Wills (6th Am. ed.), *716: “A residuary gift of personal estate, carries not only everything not in terms disposed of, but everything that in the event turns out to be not well disposed of. A presumption arises for the residuary legatee against every one except the particular legatee: for a testator is supposed to give his personalty away from' the former only for the sake of the latter.” (Bee, also, 2 Redf. Wills [2d ed.], 116 et seq.; 1 Underhill Wills, §§ 335, 336; Cruikshank v. Home for the Friendless, 113 N. Y. 337; Matter of Bonnet, Id. 522.)

In the Cruikshank case the rule was applied although the devise which lapsed was one specially created by testator by á codicil which failed to take effect, and yet the lands so devised and so taken out of the residuary clause contained in the will were held to be restored to the residue.

It cannot be assumed that it was the intention of the court in the Osbúrn case to overrule • the cases in this State above referred to or that the court was not familiar with the rule of these cases. ' It may he difficult to reconcile that case on principle with the earlier cases. However that may be, we think the Osburn case is not controlling in our case. Here there was no codicil taking anything away from the residue created by the will. The testatrix’s intention to dispose of some part of her estate by the 6th clause of her will fails simply because her intention in that respect cannot now be ascertained. If the legatee named in that clause had died before the testatrix, the amount of her intended legacy would fall into the residue in accordance with her presumed intention. If the legacy cannot be paid because its purport cannot be ascertained, we think we must presume the same intention in respect-of the residuary clause, and so that its amount, whatever it was, falls into the residue, of which one-half will be distributed to residuary legatees whose names still remain in the will. As to the other one-half, unless the missing part of the residuary clause is proved, there will necessarily be 'intestacy.

The decree of the Surrogate’s Court should he reversed, and as this proceeding was pending prior to the enactment of chapter 443 of the Laws of 1914, amending the Code of Civil Procedure as to the practice in Surrogate’s Court, we are required by section 2771 of the Code, as enacted by that act, to follow the practice as it existed prior to September 1, 1914. Hence, under the provisions of section 2588 of the Code as it existed before the amendments of 1914, we must direct a trial by jury of questions of fact arising upon the issues between the parties. Accordingly, the decree of the surrogate is reversed, with costs to the appellant to abide the final award of costs, and a trial by jury is ordered to take place at a Trial Term of the Supreme Court in Onondaga county to be specified in the order of the following questions of fact:

1. Did the will propounded for probate at the time it was executed contain clauses or provisions additional to those now appearing therein ?
2. What was the contents of such additional clauses or provisions %
3. Were such additional clauses or provisions cut or removed from the will by testatrix, or by any other person in her presence by her direction or consent, for the purpose or with the intent to revoke the will ?

All concurred, except Robson, J., who dissented.

Decree reversed, with costs to appellant to abide the final award of costs; the 5th and 6th findings of fact contained in the decision are disapproved and a trial of the following issues of fact directed to be had, by and before a jury of the Supreme Court, at a term thereof to be convened at the city of Syracuse, in and for the county of Onondaga, on the first Monday in ¡November, 1915, viz.: 1. Did the will propounded for probate at the time it was executed contain clauses or provisions additional to those now appearing therein ? 2. What was the contents of such additional clauses or provisions ? 3. Were such additional clauses or provisions cut or removed from the will by testatrix, or by any other person in her presence by her direction or consent, for the purpose or with the intent to" revoke the will ?  