
    In the Matter of the Probate of the Last Will and Testament of Asher W. Miner, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed May 21, 1895.)
    
    1. Will—Construction.
    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 dispose of all the testator’s estate, which remains-after effectuating the previous provisions of the will, or which may be added to by lapses, invalid dispositions, or other accident.
    2. Surrogate’s court—Evidence.
    Under the provisions of § 2545 of the Code, a surrogate’s decree will not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment entered upon a decree of the surrogate of Allegany county, so far as the same construes the will of Asher W. Miner, deceased.
    
      James C. Smith, for Maria S. Wills et al. app’lts; Charles B. Wheeler and Arthur W. Hickman, for Charles Wheeler et al. app’lts; Charles Daniels and A. L. Elliott, for resp’ts.
    
      
       Affirming 55 St. Rep. 225.
    
   Gray, J.

The will of the deceased was written by himself and made the following provisions: First, he gave to his wife, in lieu of dowér and all claims by her as widow, absolutely, the sum of .$20,000 and, also, during her life the use of a similar sum and the use of all lands owned by him in the town of Friendship. He gave to her all his “household goods, furniture and fixtures and effects and all his horses, harnesses, carriages, robes, and cutters.” Second, he gave to each of these respondents the sum of $10,000, less any indebtedness or notes held against them. Third, he gave to a niece the interest on $4,000 during her life. Fourth, he gave to a church the sum of $3,000, with directions as to its investment and use, and providing that if the church should be without a pastor for the term of twenty-two months the sum given should “ revert to and be a part of his residuary estate.” In the fifth, sixth, seventh, eighth, ninth and tenth clauses he made bequests for educational and charitable objects. In the eleventh clause certain specific articles were bequeathed. In the twelfth clause, he directed his executors to sell and convey any and all of his real estate, not otherwise disposed of, and to convert the same into personal estate; and he instructed them, in the event of the bequest before mentioned to the church failing, that it should become a part of his residuary estate. In the thirteenth clause, he directed that “after the aforementioned payments shall be made out of the avails of my real and personal estate the balance shall form a part of my residuary estate.” The fourteenth clause reads as follows : “All the rest and residue of my estate both real and personal not heretofore disposed of I give bequeath and devise as follow's all of my household goods furniture and effects after the decease of myself and wife to Kate M. Wellman Myra E. Oorbin and Ella Lockwood to be equally divided between them share and share alike.” It is contended on the part of the appellants, who are next of kin to the testator, that he died intestate as to the general residue of his estate. While on the other hand, the respondents, who are the three persons named in the residuary clause of the will, claim that its provisions give to them whatever belongs to the residuary estate.

The peculiarity of the fourteenth, or residuary, clause, which •creates the difficulty in this case, is that the general gift of the residuary estate, with which the clause commences, has an appearance •of being restricted and narrowed, so as to limit the interest of the persons named therein to the testator’s “household goods, furniturc and effects.” It is argued that the effect of writing in after the general gift of the residuary estate these words, viz.: “as follows all my household goods furniture and effects after the decease of myself and wife to Kate M. Wellman,” etc., was to convert the residuary gift into a specific one of the particular property mentioned. The appellants say that the words of this clause, which precede the enumeration of the testator’s household goods, furniture and effects, do not amount to a gift, as no donee is named in them, and that they are not connected with, but are separate from, the names of the three persons below, by the expression “as follows” and the other intervening words and, that being the case, the names of a donee cannot be supplied by paroi. The result is, according to their argument, that, while the opening words of the clause express an intention to proceed to give the residuary estate, the intention is unexecuted, except by what follows and that which follows is a specific gift of the remainder in the household goods, etc., expectant on the death of the testator’s wife.

It cannot be disputed but that the testator, in undertaking to draw his own will, has expressed himself in the residuary clause, which, in view of the large estate of which he died seized, was the most important one in his will, in very inartificial and inapt language. I think that this is a ease where the intention of the testator to effectually dispose of his residuary estate has very nearly failed of expression; but, with all the difficulties in the way, I think that the language of the clause is adequate to support the construction, which finds the necessary expression of the intention. If some effect is necessary to that end, it is one which it is the duty of the court to make, rather than to permit the result of a substantial intestancy. When we consider carefully the general plan of this will and the circumstances under which it was made, I think we can readily reach the conclusion that it is a case, not where the intention is really unexpressed, nor one where we have to add words to the will, or to supply its omissions, in order to find ■ the intention expressed ; but one where the words of gift in the residuary clause were merely inaptly used, or, rather, unfortunately arranged by the testator, and that we should be doing no violence to the rules of law, or of language, if we give that effect to the residuary clause, which the court gave below. If we can see that the inapt, or careless, use of language by the testator has created the difficulty in ascertaining his intention, but, nevertheless, feel certain as to what he meant, from reading the whole instrument in connection with the clause in question, we may subordinate the language to that meaning. I fully agree with the proposition, advanced for the appellants by their able counsel, that we must gather the intention of the testator from the words he has used and that it must not be a matter of conjecture or speculation on the part of the court. If it were not possible, in the will before us, to reach, with a certainty of conviction, the real intention of the testator and to find it actually expressed, 1 could not advise the affirmance of this judgment. But 1 think the testator has said enough to indicate his intention with respect to his residuary estate and" its disposition by gift to the persons named. 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 ; 22 St. Rep. 151. 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, testators do not contemplate.” Lamb v. Lamb, 131 N. Y. 227; 43 St. Rep. 112. In performing the office of contraction, and in order that an apparent intention of the testator shall not be rendered abortive by his inapt use of language, the court may reject words and limitations, supply them, or transpose them, to get at the correct meaning. Phillips v. Davies, 92 N. Y. 199.

Turning to the will and the circumstances under which it was made, we find the testator to have been an active business man, who died at an advanced age ; but who, up to the end, was in good health and attending daily to his business pursuits. He had no children and had taken the three persons named in the residuary clause of his will into his family at early ages. Although he never formally adopted them, they grew up and were recognized as members of his family and the relations between them were at all times of an affectionate nature. The relations between him and his brothers and nephews and nieces were, also, of a more or less affectionate and pleasant nature. The ties of affection between him and the three women, who had grown up from childhood as members of his household, must have been strong enough to warrant him in feeling towards them as a parent might towards his children, when making testamentary disposition of his property. I refer to these circumstances, not so much because they were essential to be shown in aid of the construction of this will, but as tending to reinforce the apparent intention to make them residuary legatees. The general plan of the will itself shows that the testator had in mind to constitute a residuary fund, which might be swelled in its proportions by events affecting prior bequests. For instance, in the sixth clause of the will there is the provision that, if the bequest to the church should fail, it should become a part of his residuary estate. A similar provision again appears in the twelfth clause of the will. In the thirteenth clause he provides that the balance remaining after payment of legacies shall form a part of his residuary estate. We then have the fourteenth, or residuary, clause in question; the very existence of which indicates a purpose on the part of the testator to make a disposition of liis residuary estate and, unless there is something' prohibitive, or insuperably defective in it, the presumption 'should justly obtain from its presence, as also from the very plan of the will, that an effectual disposition had been made of whatever constituted the testator’s residuary estate. Having made certain bequests of his property and having provided with reference to a residuary estate, the testator proceeds to say what shall be done with it and his language is “all the rest and residue of my estate both real and personal not heretofore disposed of I give, bequeath and devise as follows,” etc. That language certainly is explicit and general enough to carry whatever composed his residuary estate to the donees named; and were it not for the words which intervene between that general gift and the names of the donees there could, of course, be no doubt with respect to their rights. But is it true that the doubt which ' is. raised is other than superficial and that it is not removable upon some consideration of the matter ? Shall we give the effect to the words “as follows,” which shall restrict and cut down the general gift of the testator’s estate to the specific articles mentioned and which are of comparatively small value ? Is there any reason for supposing that the testator did not mean, in making the general gift of his residuary estate, that the three women named in that clause s'hould not receive it? Can we justly say that, having in his will anticipated the existence of a residuary estate and then having expressed the intention to give it, that he has left the intention unexecuted for failure to name donees? I think not and I think that we should hold that the general words of gift carried to the three women, named as residuary legatees, all of the residuary estate; notwithstanding the presence of the qualifying words “ as follows.” The testator was mindful, when drawing the fourteenth clause, of the former provision in his will made in favor of his wife; which, apparently, gave absolutely to her the household goods furniture and effects. Intending, doubtless, that her emjoyment of them should only be for her life, he, parenthetically, to use the expression of the respondent’s counsel, effects that limitation upon his previous gift, by interjecting, in the general gift of the residuary estate to the legatees named, the words in question and which have caused the difficulty here. Having completed his will, it is evident that, out of abundant caution and because he believed it to be necessary, he inserted these words of limitation which would represent his purpose and create a life use in the specific effects mentioned.

This construction of the fourteenth clause seems to us, in every view of the matter, not only the just one'to make, but the reasonable and necessary one upon the very language of the clause, read in connection with the general scheme of the will. I may, also, observe that the absence of all punctuation leaves us at greater liberty to make that arrangement of the words, parenthetical or otherwise, which will subserve the apparent purpose of the testator.

Counsel for the respondent cites us to several cases in the English courts, which show that a general and comprehensive testamentary gift of property will not be cut down by the enumeration of particular items. In Fisher v. Hepburn, 14 Beav. 626, the will gave “ the rest, residue and remainder of my estate and effects, whatsoever and wheresoever;” and the gift was held not to be restricted by the enumeration, immediately following of “ canal shares, plate, linen, china and furniture.” In King v. George, L. R. 4 Ch. Div. 435, the testatrix bequeathed “to A. K. George all that I have power over, namely, plate, linen, china, pictures, jewelry, lace, the half of all valued to be given to Herbert George, son of Frederick George.” Vice-Chancellor Malins held that the bequest was not limited to the articles specifically bequeathed and he uses this language: “I cannot help thinking that the doctrine has been settled that where a testator gives his property generally by the words ‘all my property,’ or ‘all'my estate,’ or ‘all that I have power over,’ as in this case where he uses words sufficient to pass everything, and then proceeds to enumerate particulars,—it is now, I think, pretty well settled that an enumeration of particulars does not abridge or cut down the effect of the general words.” The appellants’ counsel seeks to distinguish the decision in Fisher v. Hepburn by the suggestion that, as the articles there were named in immediate connection with the gift of the rest and residue, their enumeration could not be regarded as an attempt to limit the gift to them; and in King v. George he suggests the distinction that an intent to give the entire residue to the legatee name was unequivocally expressed by words of direct gift of the residue to such donee, be-' fore the enumerating works were resorted to. I am inclined to think, however, that the distinctions suggested are not substantial; for we have in the clause of the will before us an absolute gift of all the rest and residue of the" testator’s estate, which is made to persons named therein; unless we allow to the words “ as follows ” the restrictive effect insisted upon by the appellants. In the case of Childs v. Wilson, 2 Jur. 415, to which we are referred by the appellants’ counsel, in his argument upon the effect of the expression “ as follows,” there was no general residuary gift. In that case the word “ namely ” followed after a gift of all the testator’s household furniture to his wife and after the gift to trustees for his wife and child of all his “ money, goods and chattels whatsoever, except my household furniture aforesaid ; ” and because, after “ namely,” he proceeded to give to his wife fifty pounds a year'for her life and to his daughter five hundred pounds when she attained twenty-one “ and in case my wife, Mary Brown, shall be pregnant at my death, the child to have five hundred pounds and my wife twenty-five pounds per annum, instead of fifty pounds as aforesaid,” it was held that there was an intestacy as to the rest of the estate not comprehended within those amounts. But there was some reason in that case for attaching to the word “namely ” the restricted meaning, because the bequests were in fact restricted by naming precise amounts.

Without further discussion of the great number of cases, which have been cited as bearing more or less upon the question here I think we are warranted in giving that construction to the residuary gift, contained in the fourteenth clause of this will, which will be in harmony with the plan of the whole will and- which will effectuate that evident intention, which the words of the clause suggest and which we think they have, although most inartificially expressed. As I have previously suggested, the case presents no-inconsiderable difficulty, growing out of the fact that the testator has undertaken to make his own will and, in doing so, has been unfortunate in the arrangement of words. But the result of a consideration of the whole will leaves the conviction that the testator has not failed to express his intention to give the whole of his residuary estate to the three persons named.

The proponents of this will offered extrinsic evidence to show the motives and the intention of the testator; which consisted in the introduction of a will, made by him some few years previous to the present will, and in considerable testimony as to the relations which subsisted between the testator and the respondents. It may be a matter of doubt as to the relevancy and materiality of very much of this evidence ; inasmuch as the language of the will was not, perhaps, sufficiently ambiguous to warrant it. The object, of course, of introducing the testimony with respect to the relations subsisting between the testator and the respondents, was to place the court; as nearly as possible, in the position of the testator when he made his will; and that evidence to that effect is generally admissible cannot be denied. It may be that as to some of the evidence here it exceeded the proper limits; but no prejudice has resulted and without it the court could have arrived at the conclusion it did. As to the previous will which was introduced in evidence, the object was to show that the same persons were intended to be benefited by the present will, who were the principal beneficiaries in the prior will. It is sufficiently plain from a comparison of the two wills and the literal identity of their language in important provisions, that the prior will must have been before the testator and furnished the model for drawing the present will. In that view of the case, perhaps, it cannot be said that there was error in receiving in evidence the former will to aid in the construction of the present one. But, whatever doubt there may be as to the admissibility of such evidence, and, in my opinion, there is considerable, it did not constitute error which calls for a reversal at our hands; for the reason that, in its absence, the same result must have been reached. Under the provisions of section 2545 of the Code of Civil Procedure, a surrogate’s decree shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. The effect of that section is to leave the appellate court at liberty to disregard the error, if it could have had no influence upon the determination of the case. If the -judgment is clearly right, notwithstanding the error, it is no ground for reversal. Loder v Whelpley, 111 N. Y. 239, 246 ; 19 St. Rep. 631.

It results from the views which I have expressed, that the judgment below should b' affirmed, with costs.

All concur, except Haight, J., not sitting. Judgment affirmed.  