
    In the Matter of the Judicial Settlement of the Account of John Murphy, as Executor, etc., of John W. Trim, Deceased. Jessie Ritchie, as General Guardian, etc., of Robert Thomas Ritchie and John Ritchie, Infants, and Arthur M. Milligan, as Special Guardian of Said Infants, Appellants; Harriette M. T. Weaver, Respondent.
    
      (Supreme Court, App. Div., Second Department,
    
      January 29, 1915.)
    Will—Construction—Intent op Testator—When Residuary Legacy and Devise Does Not Lapse Upon Death op Legatee.
    A testator, who left him' surviving no widow, issue, father, mother, . brothers, sisters, uncles or aunts,' after devising to his cousin, Charles Ritchie, the father of two infants, a house and lot, devised another house and) lot to said! Charles Ritchie and another cousin. Two following subdivisions of Ms will provided as follows: “Sixteenth. Should -any of the gifts and) bequests made by me in this my will lapse or fail for any reason, I direct that the gift or bequest so- lapsing or failing-shall go to form part of my residuary estate and be disposed of under- and) in accordance with- the seventeenth paragraph of this my will. Seventeenth. All the rest, residue and remainder of my property and estate, as well real and personal and wheresoever situate which-, at the-time of my death shall belong to me or be Subject to my disposal by will, I give, devise an’di bequeath unto Charles Ritchie hereinbefore named, absolutely and in fee to his heirs, executors and1 administrators and; assigns, according to the nature of the property.” Charles Ritchie died a few days before the testator, leaving him, surviving as his heirs at law and1 next, of kin the two infants: The testator’s only next of kin are four first cousins.
    Provisions of the will construed, and held, that it w,as the intention of the testator to substitute and) give such part of his residuary estate as was real property to the heirs, and such part as was personal property to the executors and administrators' of Charles Ritchie, for the benefit of his next of kin, in the event that his legatee did1 not survive him;
    That, therefore, the devise and- legacy given by the 17th paragraph of the will did not lapse on the death of Charles Ritchie, but, under its provisions, his heirs take the real property and his next of kin the net personal estate.
    Appeal by Jessie Ritchie, as general guardian, etc., and another, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 11th day of ETovember, 1913, and also from an order entered in the office of said Surrogate’s -Court on the 3d day of April, 1914, denying a motion to vacate part of said decree.
    The decree settled the accounts of the executor.
    Charles E. Hunter, for the appellants.
    Thomas A. S. Beattie, for the respondent Harrietts M. T. Weaver.
    John Murphy, for the respondent executor.
   Rich, J.

— John W. Trim died on April 15, 1912, leaving a ' last will and testament which was duly admitted to probate and letters testamentary issued to John Murphy, the executor named in the will. By the 12th paragraph thereof the testator devised to his cousin, Charles Ritchie, the father of said 'infants, a house and lot in the borough of Brooklyn, and by the 13th paragraph devised another house and lot in said borough to said Charles Ritchie and another cousin, Thomas Ritchie. The 16th and 17th subdivisions are as follows: .

“ Sixteenth. Should any of the gifts and bequests made by me in this my will lapse or fail for any reason, I direct that the gift or bequest so lapsing or failing shall go to form part of my residuary estate and be disposed of under and in accordance with the seventeenth paragraph of this my will.

Seventeenth. All the rest, residue and remainder of my property and estate, as well real and personal and wheresoever situate which, at the time of my death shall belong to me or be subject to my disposal by will, I give, devise and bequeath unto Charles Ritchie hereinbefore named, absolutely and in fee to his heirs, executors and administrators and assigns, according to the nature of the property.”

Charles Ritchie was a first cousin of the decedent and died intestate on March 16, 1912 (predeceasing the testator by approximately twenty days), leaving him surviving as his heirs at law and next of kin the infants Robert Thomas and John Ritchie, The testator left him surviving no widow, issue, father, mother, brothers, sisters, uncles-or aunts. His next of kin are four first cousins who would inherit any personal property of which he died intestate.

The only question presented by this appeal is whether the residuary legacy and devise quoted lapsed upon the death of Charles Ritchie. The learned surrogate held that the words “ to his heirs, executors and administrators and assigns,” in the 17th paragraph of the will, were words of limitation and not of substitution, and that by the death of the residuary legatee during the lifetime of the testator the legacy to him had lapsed and the decedent died intestate as to the residue of his estate. The appellants concede that such ruling and decision would be correct if there were nothing in the will showing a different intention on the part of the testator, but contend that the will, considered as a whole, and especially,the language of its 17th subdivision, establishes the intention of the testator to substitute and give such part of his residuary-estate as was real property to the heirs and such part as was personal property to the executors and administrators of Charles Ritchie for the benefit of his next of kin in the event that his legatee did not survive him, and in this contention I think they are right. It is the duty of courts to give such construction to the provisions of a will as will effectuate "the intent of the testator expressed in and properly deducible from the whole instrument, and in so doing words and phrases may be transposed and provisions or words inserted or left out, if necessary, to aid and carry out the testator’s actual intent and purpose. (Tilden v. Green, 130 N. Y. 51.) The only paragraph in which the testator uses the words “ heirs, executors and administrators and assigns,” is the 17th. He had made eleven different devises and bequests, two of such devises being to his cousin, Charles Ritchie, and directed the cancellation of two notes owned by him if not paid prior to his death, authorizing his executor .to release and discharge their makers, and then provided that if any bequests or gifts made by him lapsed or failed for any reason, they should form part of his residuary estate and be disposed of in accordance with the 17th paragraph of his will, which gave, devised and bequeathed the same to Charles Ritchie. If he had stopped here, the rule adopted by the learned surrogate would have- obtained, but he went further and provided, following a comma: absolutely and in fee to his heirs, executors and administrators and assigns.” Had he stopped here, perhaps the rule contended for might have obtained, but he proceeds: “ according to the nature of the property.” These last words are without meaning and wholly superfluous if it was the intent of the testator, in the event of the residuary legatee predeceasing him, that the legacy should lapse. It will be noted that the residuary bequest and devise are given to Charles Ritchie hereinbefore named.” These words are followed by a comma, and then absolutely and in fee to his heirs,” etc. I think it was the intention of the testator that, if his residuary legatee died first, his heirs, executors and administrators should take, the heirs taking the real property and his executor or administrator the personal, for the benefit of his next of kin, which would be, in the language of the testator, “ according to the nature of the property; ” and that this intention is also indicated by the fact that, having given real property to Charles Ritchie by the 12th and 13th subdivisions of the will, without naming his heirs, executors or administrators or any other successor in the event of his dying first, he provided in the 16th paragraph that if such devises lapsed or failed for any reason, they should go into the residuary estate and be disposed of in accordance with its provisions.

It is my opinion that the devise and legacy given by the 17th paragraph of the will did not lapse on the death of Charles Ritchie, but that under its provisions his heirs take the real property and his next of kin the net personál estate of the deceased.

The decree and order of the Surrogate’s Court of Kings county must be reversed, with costs, and appellants’ motion granted, with ten dollars costs, and the proceeding remitted to said court for further proceedings.

Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.

Decree and order of the Surrogate’s Court of Kings county reversed, with costs, and appellants’ motion granted, with ten dollars costs, and matter remitted to said court for further proceedings.  