
    SCHUCK v. SHOOK.
    
      N. Y. Supreme Court, Eighth District, Niagara Special Term;
    April, 1890.
    
      Will; interpretation avoiding intestacy.'] Testator who died leaving a widow and collateral relatives, by his will gave to his wife four acres of land, described, “ being all the real estate I now am seized and possessed of; also, all my personal property, horses, cattle, wagons, harness, farm-tools, grain, hay and oats, mortgages and money—about $2,100—I am now possessed of or may die possessed of; also, household furniture, bed, bedding, etc., whatsoever 1 may die possessed of, to have and to hold, first erecting me a monument,” etc. After making the will, testator used the $2,100 referred to, in the purchase of thirty acres of additional land. The estate was small and the income thereof barely sufficient to support the widow. In ejectment by an heir-at-law against the widow, —Held, that the entire will indicated an intention to dispose of the entire estate, and that under the rules requiring a favorable construction of provisions for the support of a wife, and to avoid partial intestacy, even against strict grammatical construction, the words “ whatsoever,” etc., would be construed to include real as well as personal property, and the subsequently acquired lands passed to the widow, as devisee.
    
    This is a demurrer to the answer of defendant on the ground that the answer does not state facts sufficient to make out a defense.
    The action was ejectment.
    
      
      M. I. Burrell, for plaintiff.
    
      Rickey c& Hopkins, for defendant.
    
      
       As to the rights of a widow in such case under L. 1889, c. 406, see the following case and those cited in foot-note.
    
   Lewis, J.

Jonathan Shook, who was the defendant’s husband and the paternal uncle of the plaintiff, in the year 1882 made his will. He died in 1883, leaving him surviving the defendant, his widow, no children or descendants of children, nor father nor mother, but left him surviving seven brothers and sisters, or the descendants of brothers or sisters. That portion of the will material to the questions involved in this demurrer, is as follows:

I, Jonathan Shook . . . being desirous of making an equitable and proper disposition of my property at my decease, do make, ordain and publish, etc., first: after all my legal debts are paid and settled satisfactory to my executors, I give and by these presents do bequeath to my beloved wife, Dora Palmer Shook, four acres of land situated on the home farm, east of the barn, where I now live, on the Mountain Boad, so-called, between Loclcport and Pekin; said land being all the real estate I now am seized and possessed of; also, all my personal property, horses, cattle, wagons, harness, farm tools, grain, hay and oats, mortgages and money—about $2,100—I am now possessed of, or may die possessed of; also, household furniture, bed, bedding, etc., etc., whatsoever I may. die possessed of, to have and .to hold, first erecting me a monument to not cost less than fifty dollars, to be erected under the direction of my executors. In the event of my wife dying before me, my property and estate will be used in accordance with the provisions of my last will and testament, or by the statute of this state.”

After the execution of his will, the testator purchased thirty acres of' land in the county of Niagara, paying therefor with the personal property stated in his will as being of the value of $2,100. It is claimed by the plaintiff, that as to the thirty acres, the testator died intestate; that plaintiff’s father, John Shook, who was a brother and heir-at-law of the testator, inherited an interest in the thirty acres, and the plaintiff, by virtue of the will of John Shook, became the owner of the undivided one-forty-second part of the thirty acres, ánd he brings ejectment to obtain possession thereof from the defendant. The defendant claims title to the thirty acres under the will of her husband, the testator. The plaintiff demurs to the answer on the ground that it is insufficient in law to make out • a defense. The question therefore presented is, did this after-acquired land pass to the defendant under the will of her husband ? If so, the demurrer should be overruled.

The testator left an estate of small value ; the income of it would be barely sufficient to support his widow, by the strictest and most careful economy on her part. He saw fit, after making his will, to convert the personal property which he had devoted to the support of his wife, into this land, and if he intended thereby that she should have simply the widow’s dower in the land, he made a serious inroad upon her means of support. It is clear, that at the time of. making his will he intended that his widow should have all there should be left of his estate after paying his debts, the expenses of administering his estate, and the cost of a monument. Nothing thereafter occurred showing his intention to change this purpose, unless it be the converting of the personal property into real estate. It being apparent that it was the testator’s purpose at the time of making his will, to dispose of his entire estate, the will should be construed, if possible, so as to prevent intestacy as to any part of his property (Lent v. Lent, 24 Hun, 436 ; Jackson v. Merrill, 6 John. 185). From the phraseology of the will it is quite apparent it was drawn by some person unaccustomed to preparing such instruments. It is bunglingly and inartistically drawn, and still the desire of the testator that his widow should enjoy his entire estate after paying debts, etc., is quite clear.

In Thurber v. Chambers, 66 N. Y. 42, Ch. J. Church said, that “it is’ a general rule that provisions in a will intended for the support of the wife, will receive the most favorable construction to accomplish the purpose intended.”

The doctrine at one time prevailed that as between the wife and heir, the will should be construed favorably to the latter, upon the theory that the ordinary testator would be likely to prefer the heir.

But the reason for such a rule does not now obtain. The position of the wife in the family and in society has materially improved; she is now esteemed as the equal of the husband and as competent to manage and control property. She no longer occupies the inferior position that she did in former years, and the rule, as suggested by Judge Chubch, is in keeping with the present relations of families, and as between the heir and the widow, the will should be construed favorably to the widow.

“ Where, by the examination of a will taken as a whole, the intention of the testator appears clear but its plain and definite purpose are endangered by inapt or inaccurate modes of expression, the court may, and it is its duty to, subordinate the language to the intention. It may reject words and limitations, supply or transpose them, to get at the correct meaning ” (Phillips v. Davies, 92 N. Y. 199). We have seen that the testator in the introductory clause of his will, states that he is desirous of making an equitable and proper disposition ” of his property at his decease—showing clearly an intention to dispose, by his will, of all of his property. This may be considered in arriving at the intention of the testator (Charter v. Otis, 41 Barb. 525). He further says : “ After all my legal debts are paid and settled satisfactory to my executors, I give, and by these presents do bequeath to my beloved wife,” etc.,—showing that he contemplated disposing of the estate that he should own at the time of his death. He then enumerates all of the property, which he then possessed, consisting of the four acres of land which he describes as all the land he then owns, personal property of the value of $2,100, and his household furniture, and then uses the comprehensive phrase “ whatsoever I may die possessed of, to have and to hold, first erecting me a monument,” etc.

This sentence, if a grammatical construction is to be given to the will, would probably be held to refer to the sentence immediately preceding it, “also household furniture,” etc. But grammatical rules, while important in arriving at the meaning of written instruments, must not be allowed to interfere with the evident intention of the writer. The word “ whatsoever ” has á very broad and comprehensive meaning. Among other definitions given to the word by Webster are “ one thing or another ” and “ anything that may be,” etc., sufficiently broad to cover both real and personal property; anything, in fact, in the way of property, and must be held in this case, I think, to include lands. The will contemplates the contingency of the wife dying before the testator. In that event, he says, “ my property and estate will be used in accordance with the provisions of my last will and testament, or by the statute of this State.” While it is somewhat difficult to see what the testator meant by the expression will be used in accordance with the provisions of my last will and testament,” I think he intended to secure the erection of a monument, and that then his property shou’d pass as provided by the statutes of the State. He not providing for any residuary legatees, would lead to the inference that he intended, if his wife survived him, that she should take the entire estate as it existed at the time of his death. I cannot bring my mind to believe that the testator intended that his wife should have simply a dower interest in the thirty acres of land, and that it should be divided among his heirs, none of whom would receive a sufficient amount in value to be of any especial use to them.

The will clearly states that it is his intention to devise his entire real estate.

It is provided by Section 5 of Article 1 of the [Revised Statutes relating to wills of real estate, that “ every will that shall be made by a testator in express terms of all his real estate; or, in any other terms denoting his intent to devise all In's real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.”

A careful reading of the whole will leads my mind to the conclusion that he intended that the entire estate at the time of his death should pass to his widow for her support, and the demurrer must, therefore, he overruled, with costs against the plaintiff.

So ordered.  