
    In the Matter of the Last Will of Hiram Vowers.
    
    
      (Court of Appeals,
    
    
      Filed June 4, 1889.)
    
    1. Will—Construction of—Legacy by implication—Rule of construction.
    The rule of construction as to legacy by implication is that the inference from the will need, not be irresistible or such as to exclude all doubts possible to be raised, but must, nevertheless, be such as to leave no hesitation in the mind of the court, and must not rest upon mere conjecture. "The intention must be clear, so that no other reasonable inference can be made.
    2. Same—When legacy implied.
    The testator had a wife, but no children. By his will he first directed he payment of his debts, and then provided as follows: “Second, I give, devise and bequeath unto my beloved wife, Marietta Vowers, the use of my dwelling-house, and furniture therein, for and during her natural life. * * * and I also direct my executor, hereinafter named, to pay to my said wife annually, for and during her natural life, the sum of fifty dollars, to have and to hold the same to her sole use and benefit. This provision to be accepted by my wife in lieu of her dower right, and d.stributive share in my estate. She to make her election whether she accepts this provision of my will,within sixty days from the time of proving the same.” The testator then gave all the rest and residue of his property tohis nephew. The widow, within the sixty days, made her election and rejected the provision for the use of the house, and the annuity. Held, that she was entitled (to dower and) to such a share of the personal estate as the law would have given her had the deeeaseddied intestate.
    3. Same—Practice—Construction of will can be raised on probate under Code Civ. Pro., §2624.
    The widow had the right, under Code of Civil Procedure, § 2624, upon the probate of the will, to raise the question of construction, because the question involved only personal property.
    
      Appeal from a judgment of the supreme court, general term, third department, affirming a decree of the surrogate’s court,.
    
      S. & L. M. Brown, for app’lt; L. H. Northrup, for resp’t.
    
      
       Reversing 10 N. T. State Rep., 94.
    
   Finch, J.

The question of construction raised by the language of the testator in framing the provision for his wife, is of a character so unusual that we can find no precise parallel or precedent in the courts of our own state. The case is one of a legacy by implication; that is, created not by a direct or express" gift, but inferred from language which shows an intention to give the legacy, and can have no other reasonable explanation. Instances of such legacies are not uncommon m the English reports, and a reference to some of them will disclose their general character, and the rule of solution adopted. In Goodright v. Hoskins, 9 East., 306, the action was ejectment to recover’ certain leasehold premises which the testator possessed in his lifetime, for a term of ninety-nine years. His will gave the estate to his son, Richard, until the latter’s eldest son, Thomas, should attain twenty-one, and no longer; if Thomas should die in his minority, then the estate was to go to his younger brothers, John or Richard, or either of them, who should attain twenty-one. The testator thereupon added “ and I, desire the said premises of Roskief may be quitted and delivered up as aforesaid by my said son, Richard Hos-kins, accordingly.” It was argued for the plaintiff that there was no gift to Thomas, in terms, on his arriving at the age of twenty-one, which was true; but Lord Ellen-borough said, there was a strong implication from the words of the will, that the testator meant that Thomas should have Roskief, for his father, at the majority of Thomas, was to quit and deliver up the premises, and to whom if not to Thomas. The court added an expression of pleasure that they found themselves warranted by the authorities, in establishing a gift to Thomas by implication. In Thorp v. Owen, 2 Hare, 607, the testator’s direction that everything should remain “as it now is,” during the life of his wife, was held to give her a life interest by implication. The rule of construction which seems to have prevailed is, that the inference from the will need not be irresistible or such as to exclude all doubts possible to be raised, but must, nevertheless, be such as to leave no hesitation in the mind of the court, and must not rest upon mere conjecture _ The intention must be clear, so that no other reasonable inference can be made. Grout v. Hapgood, 13 Pick., 164. In our own state we are referred to Marsh v. Hague, 1 Edward’s Ch. Rep., 174, in which bequests were implied to children of an uncle not included in the list of legatees, by force of a subsequent clause, which assumed that the gift had been made to them. The court said, there was no other rational meaning to be given to the expressions used, and ■that construction must, be given or the words of the testator rejected as senseless or useless, which was not permissible. Undoubtedly, in every such case we must be quite sure of the testator’s intention, and not substitute for it some notion -of our own; but when his words leave no doubt about his intention, and can have no other responsible interpretation, we are justified in upholding a legacy by implication where no gift in express terms has been made. Assuming this to be a correct statement of the law, we may now inquire whether the facts of the present case fall within the range of its application.

The testator had a wife but no children. By his will, he first directed the payment of his debts, and then provided as follows:

“Second. I give, devise and bequeath unto my beloved wife, Marietta Yowers. the use of my dwelHng-house, and furniture therein, for and during her natural life, said dwelling-house being the same in which I now reside in the village and town of Caldwell, aforesaid; and I also direct my executor hereinafter named to pay to my said wife annually, for and during her natural life, the sum of fifty dollars, to have and to hold the same to her sóle use and benefit; this provision to be accepted by my wife in lieu of her dower right and distributive share in my estate, she to make her election whether she accepts this provision of my will within sixty days from the time of proving the same.” The testator then gave all the rest and residue of his pz’operty to his nephew, Orrin Burge, with a power of sale, and naming him as executor. The widow, within the sixty days, made her election, and rejected the provision for the use of the house, and the annuity, and thereupon claimed that she was entitled not only to her dower, but to a bequest by implication of a sum equivalent to what would have been her distributive share had the testator died without a will. On the probate of the will before the surrogate, she filed allegations, puttizzg expressly in issue the construction of the will as it respected the implied legacy claimed. The decision of the surrogate was adverse to her construction, and was affirmed in the general term by a divided court.

The executor here objects that the widow had no right upon the pz’obate of the will to raise the question of constz’uction, because that question involved both real and personal estate. The Code permits (section 2624) a party in such a proceeding to put in issue “the validity, construction or effect of any disposition of personal property.’- It was such a disposition, and that alone, which the widow put in issue upon the hearing, and whiclz the surrogate decided. The sole inquiry was, whether the terms of the will, if she rejected the provision primarily made for her benefit, gave her, by implication, a legacy equal to what would have been her distributive share in a case of intestacy. No question whatever was raised or involved as to the real estate.

By the terms of the will, the widow was given an election which implies a choice between alternatives, and what those were, in the thought and intention of the testator, is the natural and primary inquiry.

The executor claims, and is compelled to claim, in order to reach his result, that the alternatives were the use of the house, and the annuity on the one hand and dower alone on the other, or the testator’s provision in the one event, and the law’s provision in spite of the will on the other. But those alternatives he neither expressed nor intended. To say that he did require us to strike out the expression, “her distributive share of my estate,” is useless- and meaningless. It requires us to construe it as a mere careless and inapt amplification of the word dower, and adding nothing to that expression.

We have no fright to treat it as meaningless, and it certainly was not careless or inapt. It is a perfectly accurate expression, describing a certain quantity of interest in the property of an intestate, and must be deemed to have been used intelligently purposely, and to aid in disclosing the testator’s real intention. All these fixed rules we must violate if we hold the respondent’s theory that the alternatives between which the widow was required to choose were the testator’s provision on the one hand and dower only on the other. It is inevitable on that construction that the words relating to a distributive share shall have no meaning, and can have none, and must be utterly expunged from the will.

The pressure of this difficulty has led the respondent to suggest that since the residuary legatee might have died in the life-time of the testator, and his legacy lapsed, and so-the widow come in for a distributive sha-re, it was that possibility which he meant to cut off. But the testator said nothing of the kind. He described not an interest in a. lapsed legacy, but an interest which the law would give where there was no will, and no legacy, lapsed or otherwise. It is her distributive share in my estate; that share' to which she would have been entitled had no will been made. So that the respondent is driven back to the position that the phrase is superfluous, has no meaning, indicates no intention, and must be wholly disregarded, and. that, too, in behalf of a nephew, and against a wife for whom the law seduously frames protection. The contrary-construction seems to be natural, reasonable and just, and,, I have no doubt, correctly carries out the testator’s real intention. When he gave the house and lot, and the annuity "“in lieu of” dower, he perfectly understood that by using that phrase, “in lieu of,” he put the widow to a choice between two things, either of which she could have, and either of which he meant she should have, according to her preference.

And when he added “ in lieu of” her distributive share in my estate, he must again have meant that share which she could have and which she should have if such was her choice. It is quite probable, as is suggested in the dissent ing opinion below, that the testator balanced in his mind the use of the house against the dower and annuity he provided against the distributive share; his gift of the realty against the law’s provision out of it for the widow, and his gift out of the personalty against the law’s provision out of that, and meant as to both that the widow should choose, but choose promptly, and within the sixty days which he described. We can impute no other meaning to his language, and find for it no different interpretation, and are, therefore, of opinion that, in the" event which has happened, the widow is entitled to such share of the personal estate as the law would have given her had the deceased died intestate.

The judgment of the surrogate appealed from, and of the general term should be reversed, with costs of both parties payable out of the estate, and the case remitted to the surrogate for a proper decree.

All concur.  