
    In the Matter of the Judicial Settlement of Proceedings of Caroline M. Tamargo, as Administratrix with the Will Annexed of Gertrude Vosseler, Deceased. Annie Miller and Others, Appellants; Joseph Manke and Others, Respondents.
    First Department,
    November 12, 1915.
    Will construed — gift of contingent remainder to heirs of legatee if she dies before testatrix.
    Where a gift of a residuary estate is made to specified persons, ‘ ‘ their heirs and assigns, to have and to hold the same for their own use, benefit and behoof forever, share and share alike, per stirpes and not per capita,'''’ the provision should be read as if the words per stirpes and not per capita” followed “assigns” before the habendum clause, for they relate to the persons who are to take and not to the quality of the estate to be taken.
    Although one of the residuary legatees was dead at the time the will aforesaid was executed, and the legacy to her lapsed because she was not a descendant of the testatrix, there was no intestacy as to that gift, for the testatrix by the words aforesaid intended that if the beneficiary named should predecease her, the gift should go to the heirs of said beneficiary per stirpes and not per capita.”
    If possible, that construction will be given to a will which avoids intestacy.
    Ingraham, P. J., and Scott, J., dissented.
    
      Separate appeals by Annie Miller and another, and by J. Robert Rubin, as special guardian of William Bourdet, from part of a decree of the Surrogate’s Court of the county of blew York, entered in the office of said Surrogate’s Court on the 18th day of March, 1915.
    The part of the decree appealed from adjudges that a bequest and devise of one-fourth of the residuary estate to testatrix’s sister-in-law, Anna V. 0. Helbig, misnamed Helbusch in the will, has lapsed and that the next of kin and heirs at law of the testatrix take such one-fourth interest in the same manner as though the deceased, as to it, had died intestate.
    
      Grenville Clark [Silas W. Howland with him on the brief], for the appellants Miller and Edward Bourdet.
    
      J. Robert Rubin, special guardian, in person.
    
      Arthur Butler Graham, for the respondent administratrix c. t. a.
    
      William Duncan Cameron, special guardian for Joseph Manke, II, and another.
    
      Benjamin E. Messler, for the respondents Joseph Manke and others.
   Laughlin, J.:

The will was executed on the 25th day of March, 1911, and the testatrix died two days thereafter. The 1st paragraph of the will directs the payment of debts, funeral expenses and expenses of administration, and the 2d makes bequests to two individuals named, who are designated “ friends ” of the testatrix, and these bequests were to them to have and to hold the same for their own use, benefit and behoof forever, share and share alike.” By the 3d paragraph she devised and bequeathed the rest, residue and remainder of her property by provisions as follows: “ Unto the following named persons, viz: My brother-in-law Jacob Vosseler, my niece Lena Damarco nee Meixmer, my sister-in-law Mrs. Helbusch nee Vosseler, and my sister-in-law Mary Vosseler, the two last named being residents now or late of the city of Hew Orleans, La., their heirs and assigns, to have and to hold the same for their own use, benefit and behoof forever, share and share alike, per stirpes and not per capita.”

It is perfectly plain that these provisions are to be construed precisely as if the words “per stirpes and not per capita ” followed “assigns” before the habendum clause, for they clearly relate to the persons who are to take and not to the quality of the estate to be taken. The will contains no other devise or bequest. It will be observed that the phraseology in the 3d paragraph differs materially from that in the 2d and that there is here manifested a plain intention that all the property here devised and bequeathed should go to the relatives of the husband of the testatrix from whom appellants offered to show she received the property, and to no one else, and she evidently believed that she had effectually disposed of it. The law does not favor a construction which will cause partial intestacy and the intention of the testatrix to dispose of all her property must be given effect if the provisions of the will are susceptible of a construction which will accomplish that purpose. (Schult v. Moll, 132 N. Y. 122; Tyndall v. Fleming, 123 App. Div. 837; Terry v. Wiggins, 47 N. Y. 512; Norris v. Beyea, 13 id. 273.) Mrs. Helbig died in New Orleans in the year 1905, leaving as her sole heirs two daughters, the appellant Miller and Catherine Bourdet, both of whom survived the testatrix, but Catherine subsequently died, leaving no husband but two sons, the appellants Bourdet, her sole heirs at law. It does not appear whether Mrs. Helbig resided in New Orleans, but her daughter Catherine resided and died there in 1912. There is no evidence other than the provisions of the will with respect to whether the testatrix at the time she made the will was aware of the fact that Mrs. Helbig had died.

The learned surrogate in construing the will has given no force or effect to the words, “their heirs and assigns, to have and to hold the same for their own use, benefit and behoof forever, share and share alike, per stirpes and not per capita. ” If the will is to be construed as if those words had been omitted, manifestly his construction is right, for such a devise or bequest to one who is dead lapses, and it would not be saved by the words “heirs and assigns” or “share and share alike”

(Matter of Wells, 113 N. Y. 396; Everitt v. Everitt, 29 id. 39; Brown v. Brown, 54 App. Div. 6); and it could not go to those who take the other three-fourths either on the theory that it was a devise and bequest to á class, or as joint tenants, for our statute declares such a devise to create a tenancy in common unless expressly declared by the instrument to be a joint tenancy, which is not the case here. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 66; Matter of Kimberly, 150 N. Y. 90; Matter of Hoffman, 201 id. 247.) It was stipulated that Mrs. Helbig was not the daughter or a descendant of the testatrix and not within the statute which at that time had only changed the common-law rule as to them. (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 29.) It may be that the testatrix was in doubt whether her sister-in-law was alive at the time the will was made, and if so, that would account for the phraseology employed; but assuming that she supposed her sister-in-law was then living, and charging her with knowledge of the law that in the event that the sister-in-law predeceased her the legacy would lapse, and that in the event the sister-in-law survived her the bequest and devise would at once become absolute and that the heirs of the sister-in-law could neither have nor. take any interest under the will—still it was entirely competent for the testatrix to provide that in the event that her sister-in-law predeceased her she desired that the heirs of the sister-in-law should take and that they should take per stirpes and not per capita. The use of the words “per stirpes and not per capita ” are decisive against the word “heirs” being construed as words of limitation merely. (Jarman Wills [6th Eng. ed.], 1321.) It is far more reasonable, in my opinion, to attribute to the testatrix this intention and to give her will that construction than to hold that the attorney she employed to draft her will inserted this clause through incompetence and without accomplishing anything thereby. The clause is appropriate to indicate this meaning, and the words employed with respect to a taking per stirpes and not per capita are wholly inappropriate on any other theory. There appears to be no controlling authority in this jurisdiction, but I think this construction is supported by decisions in other jurisdictions and by eminent text writers. (See Dick v. Lacy, 8 Beav. 214; Atherton v. Crowther, 19 id. 448; Rothmanskey v. Heiss, 86 Md. 633; Pearson v. Stephen, 5 Bligh [N. S.], 203; Jarman Wills [6th Eng. ed.], 1321; Page Wills, § 552 et seq.) In Dick v. Lacy {supra) the words per stirpes were deemed controlling with respect to the construction of a gift after a prior life estate to ‘' the daughters of Captain Boyce, and their descendants per stirpes, to hold to them, then heirs and assigns forever. ” It was held that the heirs of a daughter of Captain Boyce, who died before the termination of the life tenancy, took by substitution the share that their mother would have taken had she lived until the termination thereof, and this was placed upon the use of the words per stirpes, without which, the court said, it would have been necessary to construe the words heirs ” and assigns ” as words of limitation, and that the heirs of the daughter dying before the termination of the life tenancy would have taken nothing.

In my opinion, therefore, the learned surrogate erroneously construed the will.

It follows that the provisions of the decree from which the appeals are taken should be reversed, with separate bills of costs to appellants appearing separately, and the decree should be modified in accordance with these views.

McLaughlin and Clarke, JJ., concurred; Ingraham, P. J., and Scott, J., dissented and voted to affirm on the opinion of the surrogate (Matter of Vosseler, 89 Misc. Rep. 614).

Decree reversed, so far as appealed from, with separate bills of costs to appellants appearing separately, and decree modified as stated in opinion. Order to he settled on notice. 
      
       Since amd. by Laws of 1913, chap. 384.— [Rep.
     