
    Matter of the Estate of John H. Schriever, Deceased.
    
      (Surrogate’s Court, Rockland County,
    
    
      September, 1915.)
    Wills—Execution of—Drawn by inexperienced layman—Construction of will—Bequests—Power of sale under—Code Civ. Pro., § 2615.
    A will inartifieially drawn by an inexperienced layman but duly executed and attested provided:
    “ First. After my lawful debts are paid, I give & bequeath to my wife the income of all my real & personal estate while she remains my widow, should she remarry I want my estate to be divided as follows, as written & mentioned on page 2 of this will. * * *
    
      
      “ I hereby appoint my son Henry J. Schriever of New York City to be executor of this my last will and testament, hereby revoking all former wills.”
    On page 2 appeared:
    “ To my widow whatever the law allows her, in lieu of dower, & remainder to be divided as hereafter mentioned.
    “(1st) I bequeath to my wife & executor power to sell whatever real estate I may own at the time of my death if they deem it to advantage.
    “ (2d) I bequeath to my daughter Annie C. Fifty dollars,' ($50) my said daughter having married without my consent. I therefore give her the above small amount should my daughter die before the settlement of my will I bequeath said amount of ($50) Fifty dollars to my son & executor.
    “ (3d) I bequeath to my nephew John H. Schriever son of my brother Herman in Attwistedt Germany the sum of Five thousand ($5,000) dollars, if said nephew should die before my estate should be settled said sum of Five thousand (5,000) dollars should go to my son & executor.
    “ (4th) I bequeath to my Brother-in-law Diederick Hinek the sum of twenty five hundred ($2500) dollars, should said Hinek die before the-settlement of my will, said sum of twenty five hundred dollars I bequeath to my son & executor.
    “ (5th) The remainder of my real & personal estate whatever it may be, I will & bequeath to my son & executor, or his heirs forever, said sum to be regulated by the first clause of my said will & testament.
    “ I heretofore bequeathed to my daughter the sum of Fifty dollars said, small bequest was on account of marrying without my consent & knowledge, the only notice received by me was the telegram sent by her husband annexed to this will.”
    In a proceeding brought under section 2615 of the Code of Civil Procedure by testator’s' daughter to obtain a judicial determination as to-the validity, construction and effect of the above mentioned clauses of testator’s will, while his widow was still living and unmarried, held:
    
    That the testator has made a valid testamentary disposition of his. entire estate;
    That the executory bequests on page two are limited upon the widow’s remarriage, and will not become effective unless and until that event, occur;
    That the estate in remainder, whatever it may be; whether it arise upon the widow’s death unmarried, or upon her remarriage, will pass to the-son absolutely, and without any qualification, but subject to the widow’s right of dower in the real property ;•
    That the widow, in the event of remarriage, will forfeit her right to-the income from the estate; but will still have a right of dower in the-real property; and
    
      That the power of sale given to the' widow, conjointly with the son, will terminate in. the event of her remarriage, and that a decree should be entered accordingly.
    Proceeding for construction of a will.
    Patterson & Brinckerhoff, for petitioner.
    Lewis M. Johnson (Frank Comesky of counsel), for executor and residuary legatee.
    Frank W. Arnold, for legatee.
   McCauley, S.

This proceeding was brought in accordance with the provisions of section 2615 of the Code of Civil Procedure to obtain a judicial determination as to the validity, construction and effect of certain clauses of the last will and testament of John H. Schriever, deceased, which was admitted to probate by this court February 24, 1910. The will bears date and was executed May 23, 1899.

The testator died January 20, 1910, leaving an estate, consisting of real and personal property, valued at $39,000. His wife, Katherine, survived him, and she is still living and unmarried. He left two children, Annie E. McElroy, a daughter, and, contingently, a legatee, by whom this proceeding was instituted, and Henry J. Schriever, a son, who is the residuary legatee and executor named in the will. These children are the testator’s only heirs at law and next of kin.

The daughter’s marriage without her father’s consent and in opposition to his wishes hastened the preparation and execution of the will, and brought about her practical disinheritance. The testator, as if to emphasize his displeasure and disapproval of the marriage, and the influence which it exerted in the disposition of his estate, annexed to the will, at the time of its execution, a telegram which he had received a few days before announcing the marriage.

The will, though inartificially drawn, was properly executed and attested. The draftsman whom the testator commissioned to prepare it was a layman, who, evidently, was without experience in the preparation of legal instruments. He used a printed form, filling in the material provisions of the will. These provisions are not expressed in apt or appropriate language, and are to some extent ambiguous, uncertain and doubtful. It may, in truth, be said that the draftsman not only failed to bestow upon his work the thought and care which it merited, but that he was negligent and careless in its performance. The printed form being on one page, and not affording sufficient space to enable the draftsman to write in all the testamentary provisions, the major portion of them was written on the back of the blank, each page being numbered. We omit the formal parts of the will and reproduce only the items which we are asked to construe.

“Page (1) one.

“First: After my lawful debts are paid, I give & bequeath to my wife the income of all my real & personal estate while she remains my widow, should she remarry I want my estate to be divided as follows, as written & mentioned on page 2 of this will. * * *

I hereby appoint my son Henry I. Schriever of Hew York City to be executor of this my last will and testament, hereby revoking all former wills.

“ Page (2) two.

To my widow whatever the law allows her, in lieu of dower, & remainder to be divided as hereafter mentioned.

(1st) I bequeath to my wife & executor power to sell whatever real estate I may own at the time of my death if they deem it to advantage.

“ (2d) I bequeath to my daughter Annie C. Fifty dollars, ($50) my said daughter having married without my consent-I therefore give her the above small amount should my daughter die before the settlement of my will I bequeath said amount of ($50) Fifty dollars to my son & executor.

“ (3d) I bequeath to my nephew^ John H. Schriever son of my brother Herman in Attwistedt Germany the sum of Five thousand ($5000) dollars, if said nephew should die before my estate should be settled said sum of Five thousand (5000) dollars should go to my son & executor.

“ (4th) I bequeath to my Brother-in-law Diederick Hinck the sum of twenty five hundred (2500) dollars, should said Hinck die before the settlement of my will, said sum of twenty-five hundred dollars I bequeath to my son & executor.

“ (5th) The remainder of my real & personal estate whatever it may be, I will & bequeath to my son & executor, or his heirs forever, said sum to be regulated by the first clause of my said will & testament.

I heretofore bequeathed to my daughter the sum of Fifty dollars said small bequest was on account of marrying without my consent & knowledge, the only notice received by me was the telegram sent by her husband annexed to this will.”

The widow, though cited, has not participated or appeared in the proceeding; and, apparently, is not interested in the controversy which has arisen between the son and daughter concerning the ultimate disposition of the estate.

The daughter’s contention is that the executory bequests on page 2 are limited upon the widow’s remarriage, and will not become effective unless and until that event occur; that, in the event of the widow’s death, unmarried, the estate in remainder is not disposed of, and the testator must, in that event, be considered as having died intestate, and that she and her brother, as his heirs at law and next of kin, will take the remainder by inheritance, in equal shares.

The son, however, claims that, the will, if reasonably and properly construed, disposes of the testator’s entire estate; and, therefore, that the bequests on page 2 become effective either upon the death or the remarriage of the widow. He argues that the provisions of the will, when read and construed together, evince an intention on the part of the testator to dispose •of his entire estate, not only upon the remarriage of his wife, ■but also upon her death; and that the words “ upon her death -or,” or words of equivalent meaning, were ignorantly or carelessly omitted from the clause which limits the widow’s estate. He insists that these, or similar words, shall be supplied and inserted, in construing the clause referred to, in order that the actual intention of the testator be made effective, and not defeated.

Let us examine and analyze the various provisions of the will, omitting for the present, however, any reference to or discussion of the fifth item, being the residuary clause on page 2.

By the first clause the wife is given the income from the entire estate, real and personal, while she remains my widow.” The widow’s interest in the estate must, therefore, terminate upon the happening of either one of two contingencies, namely, her death or remarriage.

This clause, it will be observed, in express terms disposes of the estate in remainder upon the widow’s remarriage; but does not, either expressly or by implication, dispose of it upon the widow’s death unmarried. The language of the clause is u should she remarry I want my estate to be divided as follows, as written and mentioned on page 2 of this will.”

There is no ambiguity, doubt or uncertainty in the language •of this provision; its meaning is clear.

The conclusion to be drawn from the language of this clause is that the executory bequests on page 2 are limited upon the widow’s remarriage, and will not become effective unless that «event occur; and that in the event of her death, unmarried, a contingency for which no provision is made, the testator must be considered as having died intestate as to the estate in remainder, unless it passes to the son and residuary legatee under the fifth item.

The first paragraph on page 2, which must be read and construed in connection with and as if it were a part of the first item, which immediately precedes it, tends to show that the testator actually intended that the bequests which follow should depend upon the widow’s remarriage, and not upon her death. The language of the paragraph is “ To my widow whatever the law allows her, in lieu of dower, and remainder to be divided as hereafter mentioned”

He could make no gift to the widow after death, and her right of dower would terminate upon the happening of that event. For do I find anything in the context which indicates a different purpose, unless it be the expression with which the will is closed. This declaration would seem to indicate that the gift to the daughter of fifty dollars was intended to be absolute; but it is not sufficient to override the preceding clauses in which, as we have shown, a different purpose is clearly expressed.

It may appear strange and unusual, if not, indeed, absurd, as counsel argues, that the bequests on page 2 should be made to depend solely upon the widow’s remarriage; but the testator has so expressed himself, and his will is controlling. We may conjecture that through ignorance, oversight or carelessness on the part of the testator, or the draftsman of the will, a mistake has occurred and that a material provision has been omitted; but it is not within the power of this court to correct the mistake or supply the omission. We cannot do for the testator what he has failed to do for himself. We may interpret and construe, but we cannot make a new will, or import into the one under consideration a new provision.

Counsel argues that because of the obvious purpose of the testator to deprive his daughter of any share of his estate, save the legacy of fifty dollars, we should read into the first item the words “ upon her death or,” or similar words, so that the bequests on page 2 shall become effective either upon the widow’s death or remarriage. This in effect would amount to a revision or amendment of the will, which is not within the power of this court, and would not effectuate, but alter, the general scope and plan of the will. The views which I have expressed are in accord with the well-established rules of construction.

The rule is very tersely stated in Herzog v. Title Guarantee & Trust Co. (177 N. Y. 86-92), where the court says: The duty of the court is not to make a new will or codicil to carry out some supposed but undisclosed purpose, but to ascertain what the testator actually intended by the language employed by him when properly interpreted, and then to determine whether such intended provisions are valid or otherwise. The duty of the court is to interpret, not to construct; to construe the will and codicil, not to make new ones.” (Tilden v. Green, 130 N. Y. 29, 51.)

Where the real meaning and intent of a testator in his will appears clear, and its plain and definite purposes are endangered by inaccurate modes of expression, the language may be subordinated to the intention. In such case the court maj reject words and limitations, supply or transpose them, to get at the correct meaning. (Phillips v. Davies, 92 N. Y. 199-204, and cases there cited.)

While courts have great latitude in giving effect to imperfectly expressed testamentary intentions, they have no right to make wills for testators. Although a will need not be framed in any particular or set phrase, it must at least be so plain a.^ to furnish some tangible clue to the testator’s intention. In cases where the language of wills has been inexact or ambiguous the courts have frequently transposed or inserted words or phrases, or even left out or inserted provisions in order to effectuate an intent that was with reasonable certainty to be gathered from the context of the whole instruments. (Phillips v. Davies, supra,; Pond v. Bergh, 10 Paige, 140.) Courts have no power, however, to construct a will where none has in fact been made, nor to import into a will new provisions which arc designed to create a testamentary disposition which is neither expressed nor necessarily to be implied. (Dreyer v. Reisman, 202 N. Y. 476, 480, citing Wager v. Wager, 96 id. 164, 172.

The rule is thus stated in Tilden v. Green (supra,), page 51: At the threshold of every suit for the construction of a will lies the rule that the court must give such construction to its provisions as will effectuate the general intent of the testator as expressed in the whole instrument. It may transpose words and phrases and read its provisions in an order different from that in which they appear in the instrument, insert or leave out provisions if necessary, hut only in aid of the testators intent and purpose. Never to devise a neiv scheme or to make a new vñll.” (See, also, Hulbert v. Southerland, 163 App. Div. 241; Eidt v. Eidt, 142 id. 733-737.)

The court in Eidt v. Eidt (supra), p. 737, says: “ The rule laid down in Starr v. Starr (132 N. Y. 154) that ‘ in construing wills the court may .transpose, reject or supply words so that it will express the intention of the testator/ does not extend so far as to allow the court to make a new will for the testator which will dispose of the property in a way not justified by any reasonable construction of the will.” (Citing Matter of Disney, 118 App. Div. 378, 190 N. Y. 128; Patchen v. Patchen. 121 id. 432; Campbell v. Beaumont, 91 id. 467; Tilden v. Green, supra.)

This brings us to a consideration of the fifth item of the will. Should this item be construed as a general residuary clause, under which the son will take the estate in remainder, whatever it may be, whether it arise upon the widow’s death unmarried, or upon her remarriage?

We are of the opinion that the question should receive an affirmative answer, and the item treated as a general residuary clause.

If by this clause the testator intended to dispose of what remained of his estate, after payment of the proceeding bequests, then the words “ said sum, to be regulated by the first clause of my said will and testament” are meaningless, and surplusage. We cannot suppose that these words were used without a definite purpose.

They expressly refer to the first clause of the will, under which, as we have seen, a residuary estate may be created upon the happening of either one of the two contingencies. I think the testator intended to make a testamentary disposition of his entire estate, and that when he made use of these words he had them in mind and intended to provide for each of them; and to express his purpose that upon the happening of either contingency his son should take the residuum of his estate, whatever it might be, absolutely. I think that is a fair and reasonable interpretation of the language of the provision.

The word “ sum ” evidently refers to the word “ remainder,” which precedes it, and was used synonymously, though inappropriately, to express the same meaning.

The court in Matter of Miner (146 N. Y. 121-131), says: “ Unless a residuary bequest is circumscribed by clear expressions and the title of a residuary legatee is narrowed by words of unmistakable import, it will be construed to perform the office that it was intended for, viz.: the disposition of all the testator’s estate, which remains after effectuating the previous provisions in the will, or which may be added to by lapses, invalid dispositions, or other accident. (Riker v. Cornwell, 113 N. Y. 115.) The rule of construction requires of the court, in dealing with the language of a residuary gift which is ambiguous, that it should lean in favor of a broad rather than of a restricted construction; for thereby intestacy is prevented, which, it is reasonable to suppose, the testators do not contemplate.’ (Lamb v. Lamb, 131 N. Y. 227.) ” (See, also, Williams v. Petit, 138 App. Div. 394.)

The gift to the widow, in the event of her remarriage, is easily defined. She is given “ whatever the law allows her in lieu of dower.” Upon the testator’s death she became entitled to a right of dower in his real property, which has not been ad-measured or set apart to her for the reason that she is given the income, during widowhood, of the entire estate. There is no provision in the will, however, which deprives her of this right, or puts her to an election.

I think, therefore, that the fair and reasonable intendment of the provision is that the widow, in the event of her remarriage, shall forfeit her right to the income from the estate, and all other rights therein, except her right of dower in the real property. Her dower, in the event of remarriage, may be released to the remainderman upon payment of a reasonable consideration therefor; otherwise it must be admeasured and set off to her, in accordance with the statutory provisions in such a case.

I think the power of sale given to the widow and executor was intended to terminate and will terminate upon the widow’s remarriage. In the event, however, of a sale by the remainder-man of any of the real property to which her dower right attaches, before the same is admeasured or released, it will be necessary for the widow to join in the conveyance, or release her dower by a separate instrument.

My consideration of the questions involved in the interpretation of the will has led me to the following conclusions:

(1) That the testator has made a valid testamentary disposition of his entire estate;

(2) That the executory bequests on page two are limited upon the widow’s remarriage, and will not become effective unless and until that event occurs ;

(3) That the estate in remainder, whatever it may be, whether it arise upon the widow’s death unmarried, or upon her remarriage, will pass to the son absolutely, and without any qualification, but subject to the widow’s right of dower in the real property;

(d) That the widow, in the event of remarriage, will forfeit her right to the income from the estate; but will still have a right of dower in the real property; and

(5) That the power of sale given to the widow, conjointly with the son, will terminate in the event of her remarriage.

A decree in accordance with these conclusions may be entered upon the usual notice.

Decreed accordingly.  