
    In the Matter of the Estate of Mary M. Dammann, Deceased. John J. Lynch, as Executor of Mary M. Dammann, Deceased, et al., Appellants-Respondents; Charles A. Sinnott et al., Respondents-Appellants; Otto P. Burkard, as Attorney in Fact for Heinrich Dammann, Respondent.
    Argued March 26, 1963;
    decided May 9, 1963.
    
      
      Raymond J. McGrover for John J. Lynch, as executor of Mary M. Dammann, deceased, and others, appellants-respondents.
    I. The paramount law of wills, viz., to carry out decedent’s intention, should prevail in this case. The opportunity is present here to escape from the illogical and deplorable rule applicable to the devolution of lapsed residuary legacies. (Oliver v. Wells, 254 N. Y. 451; Waterman v. New York Life Ins. & Trust Co., 237 N. Y. 293; Lamb v. Lamb, 131 N. Y. 227; Wright v. Wright, 225 N. Y. 329.) II. Decedent’s words were not mere words of disinheritance. Their purpose was to emphatically confirm that she wanted the residuary legatees to have all of her residuary estate to the exclusion of any others. (Collister v. Fassitt, 163 N. Y. 281; Matter of Trumble, 199 N. Y. 454; Pomroy v. 
      Hincks, 180 N. Y. 73; Gallagher v. Crooks, 132 N. Y. 338; Low v. Harmony, 72 N. Y. 408; Matter of Weissmann, 137 Misc. 113, 232 App. Div. 698; Roosevelt v. Porter, 36 Misc. 441; Matter of Knickenberg, 180 Misc. 217; Hoppock v. Tucker, 59 N. Y. 202.) III. The only reasonable inference to be drawn from testatrix’ words is that she wanted the designated residuary legatees to have it all. In such ease, the court is justified in upholding a gift by implication although no gift in express terms has been made. (Matter of Barney, 207 App. Div. 25, 239 N. Y. 584; Matter of Compton, 72 Misc. 289; Matter of Copeland, 38 Misc. 402; Matter of Strickney, 41 Misc. 70; Matter of Bosworth, 269 App. Div. 252.) IV. This will should be construed as though the words “including lapsed residuary legacies” followed the words “ all the rest, residue and remainder ” in paragraph Eighteenth. Clearly testatrix referred to her residuary estate when she used the words “my estate” in paragraph Nineteenth of her will. Paragraphs Eighteenth and Nineteenth can and should be read as though constituting but a single paragraph. (Wager v. Wager, 96 N. Y. 164; Mills v. Tompkins, 110 App. Div. 212; Ward v. Stanard, 82 App. Div. 386; West v. West, 215 App. Div. 285; Hull v. Pearson, 36 App. Div. 224; Mott v. Ackerman, 92 N. Y. 539; Phillips v. Davies, 92 N. Y. 199; Taggart v. Murray, 53 N. Y. 233.) V. While the two family groups of relatives to whom decedent gave the residue of her estate do riot fit the classical description of a class, if intention governs, they did constitute a natural class when her will was made. Her affection for the Ensenbachs and Sinnotts is disclosed by the additional bequests made to them. (Matter of Goldberg, 275 N. Y. 186; Hoppock v. Tucker, 59 N. Y. 202; Matter of Buechner, 226 N. Y. 440.) VI. Appellants urge this high court to reject this archaic rule of law heretofore reluctantly followed purely on historical grounds. (Skrymsher v. Northcote, 1 Swans. 566; Creswell v. Cheslin, 2 Eden 124; In re Judkin’s Trusts, 25 Ch. D. 743; Dodge v. Pond, 23 N. Y. 69; Beekman v. Bonsor, 23 N. Y. 298; Battalla v. State of New York, 10 N Y 2d 237.)
    
      Frank Serri for respondents-appellants.
    I. The archaic rule — no residue of a residue — should be abolished. It impedes quest for testator’s intention, tends to nullify it and serves no useful purpose. (Matter of Warren, 11 N Y 2d 463; Schult 
      v. Moll, 132 N. Y. 122; Hadcox v. Cody, 213 N. Y. 570; Wright v. Wright, 225 N. Y. 329; Kerr S. S. Co. v. Radio Corp. of America, 245 N. Y. 284; Oliver v. Wells, 254 N. Y. 451.) II. The second rule — that words of disinheritance alone will not exclude next of kin — directly nullifies testator’s clearly expressed intention and should be reversed. (Chamberlain v. Taylor, 105 N. Y. 185; Gallagher v. Crooks, 132 N. Y. 338; Matter of Trumble, 199 N. Y. 454; Woods v. Lancet, 303 N. Y. 349; Klein v. Maravelas, 219 N. Y. 383; Matter of Weissmann, 232 App. Div. 698.) III. A residuary gift to a class is a recognized exception to the artificial rule of intestacy, because it removes all doubt as to testator’s intention. The residuary clause, in instant appeal, bequeaths equally to two families, Sinnotts and Ensenbachs, all cousins living in America, and thus practically, if not technically, constitutes a gift to a class. It leaves no doubt as to intention of testatrix. (Matter of Kimberly, 150 N. Y. 90; Herzog v. Title Guar. & Trust Co., 177 N. Y. 86; Moffett v. Elmendorf, 152 N. Y. 475; Matter of Hoffman, 201 N. Y. 247.) IV. The will in its entirety discloses the primary purpose to benefit those relatives of testatrix who lived in the United States. (Moffett v. Elmendorf, 152 N. Y. 475.) V. When residuary clause paragraph Eighteenth is construed with paragraph Nineteenth which follows immediately after it, intention against intestacy is plain: share of predeceased residuary legatee goes to surviving residuary legatees residing in the United States, and not to the first cousin in Germany who is not mentioned in the entire will.
    
      Clarice G. Burkard for respondent.
    I. The rule of no residue of a residue is a fundamental precept of law. (Beekman v. Bonsor, 23 N. Y. 298; Skrymsher v. Northcote, 1 Swans. 566; Mitchell v. Rochester Ry. Co., 151 N. Y. 107; Wright v. Wright, 225 N. Y. 329; Matter of Glover, 278 App. Div. 602; Matter of Tiers, 32 Misc 2d 450; Matter of Williams, 31 Misc 2d 844; Matter of Murphy, 29 Misc 2d 507; Matter of Hicks, 7 Misc 2d 344; Matter of Weir, 7 Misc 2d 405; Matter of Watkin, 7 Misc 2d 871; Matter of Bogardus, 5 Misc 2d 607; Matter of Pepper, 208 Misc. 513.) II. Paragraph Nineteenth should be construed as a means employed by scrivener to establish testamentary capacity of testatrix. (Delafield v. Parish, 25 N. Y. 9.) III. Words of disinheritance alone do not exclude distributees. (Matter of Trumble, 199 N. Y. 454; Pomroy v. Hincks, 180 N. Y. 73; Gallagher v. Crooks, 132 N. Y. 338; Low v. Harmony, 72 N. Y. 408; Matter of McKeon, 182 Misc. 906; Matter of Penrose, 183 Misc. 226.) IY. The court will not assume intent. (Matter of Tamargo, 220 N. Y. 225.) V. Wills are creatures of statute. (Battalla v. State of New York, 10 N Y 2d 237; Woods v. Lancet, 303 N. Y. 349; Hoes v. Edison Gen. Elec. Co., 150 N. Y. 87.)
   Chief Judge Desmond.

In this proceeding the executor of the will of Mary M. Dammann, besides presenting his accounts for settlement, asked the Surrogate to construe several parts of the will. Of the Surrogate’s holdings made in response to the petition, one only is disputed on this appeal — that is, his decision that because of the death, prior to the testatrix’ death, of one of eight persons named as residuary legatees without any gift over, the one-eighth share of the prior-deceased residuary legatee must be treated as and pass as intestate property of the decedent. If the decree be affirmed, the result will be that one-eighth (about $25,000) of the residue will go to respondent Heinrich Dammann, who resides in Germany and is decedent’s sole surviving first cousin and distributee, rather than be redivided among the seven surviving named residuary legatees. As the Surrogate saw it, payment to Heinrich Dammann is mandated by decisions like Matter of Trumble (199 N. Y. 454) and Wright v. Wright (225 N. Y. 329), and many others, which state the rule that where a residuary legacy lapses and the will makes no gift over the lapsed legacy goes to the statutory distributees as intestate property. The rule, it was held below, must be enforced even where the decedent’s will signifies an intention that such distributee should not inherit any part of his estate ”, citing Pomroy v. Hincks (180 N. Y. 73). On the contrary, we hold that effect must here be given to the manifest and clearly expressed intent of the testatrix that the whole of her residuary estate go to the named eight or the survivors of them.

The first, safest and most urgent rule of testamentary construction is the one that says that whenever possible the testament is to be construed in accord with the actual intent of the testator including his presumed intent to dispose of his whole estate by the will (Schult v. Moll, 132 N. Y. 122, 125, 127; Meeks v. Meeks, 161 N. Y. 66, 70-71; Hadcox v. Cody, 213 N. Y. 570, 573, 574; Cammann v. Bailey, 210 N. Y. 19, 30; Matter of Warren, 11 N Y 2d 463). Mary M. Dammann, who never married, died in 1959. She had made her will in 1943. The testamentary scheme and “dominant purpose ” (Matter of Fabbri, 2 N Y 2d 236, 240) is plain to see: she intended that the residue of her estate, after comparatively minor special directions had been carried out, should go to eight of her closest relatives all residing in and around New York City, to the exclusion of others living in Europe. We see no reason why this testamentary intent cannot be carried out without doing violence to any rules of law.

The first 17 paragraphs of the will make directions as to debts, funeral expenses and arrangements, death taxes and requiem masses, set up two comparatively small trusts for the benefit of named cousins, leave decedent’s home and its contents to two other cousins, devise some vacant lots to two cousins, and make a series of bequests of jewelry, silverware and small sums of money. Then comes paragraph Eighteenth directing that the residue be divided into eight (8) equal parts and bequeathing one of said parts ‘ to each of the following relatives ”. There are then set out the names, addresses and relationships of eight persons, four being second cousins, three being third cousins and one being the mother of the three last described and called a “cousin by marriage”. One of the second cousins (Charles A. K. Ensenbach, a son of a predeceased first cousin) died in 1958, a few months before the death of testatrix. No change was made in the will after his death.

Since the descendants of the deceased second cousin could not take his share of the residue by inheritance, a question was raised on the accounting as to whether that share should remain part of the residue available to the seven surviving residuaries or whether, as the courts below held, testatrix had died intestate as to the one eighth bequeathed to Charles A. K. Ensenbach. In holding as they did, the courts below failed, as we see it, to give effect to the plain language and unquestionable command of the immediately following paragraph, numbered Nineteenth and reading thus: “ Nineteenth: I am not unmindful of the fact that I have other relatives than those hereinbefore referred to, and I have heretofore made a rather complete list of all or most of them, and have them in mind, and I have advised my executor and my attorney who has prepared this- will for me that it is my desire that those hereinbefore mentioned shall inherit my estate, and that no part of my estate shall go to any except those hereinbefore mentioned.”.»

Common sense and customary English usage suggest that we read paragraphs Eighteenth and Nineteenth as one. So read, they dispose of the residue, commanding in words of certainty that it go to no one outside the list of eight chosen relatives. Any possible doubt is removed by the statement that decedent has listed her other relatives and has instructed her executor and her attorney that “no part of my estate shall go to any except those hereinbefore mentioned.” We are informed that a list of decedent’s relatives written out in 1942 in connection with the making of the will has been filed in the Surrogate’s Court with other papers constituting proof as to her family tree. The name of respondent Heinrich Dammann is on that list. Thus we have: first, testatrix’ direction that the eight named persons are to have the residue; second, her further direction that no other of her relatives are to share in it; and, third and most specifically, that the other relatives named on her list incorporated into her will and including Heinrich Dammann are not to get anything. No stronger case could be found for application of the sound principle that a testator’s expressed intent is the only construction guide we need (Matter of Bisconti, 306 N. Y. 442, 445).

Thus, it is unnecessary in this case directly to advert to the ancient and much debated rule expressed in the slogan “no residue of a residue ” and explained more fully in the statement that ‘“a part of the residue of which the disposition fails will not accrue in augmentation of the remaining parts as a residue of a residue; but instead of resuming the nature of residue, devolves as undisposed of ’ ” (Beekman v. Bronson, 23 N. Y. 298, 312-313; Wright v. Wright, 225 N. Y. 329, 340, supra). Long ago our court wrote that this rule was a ‘1 technical ’ ’ one ‘ ‘ reluctantly enforced by courts when tokens are not at hand to suggest an opposite intention” (Oliver v. Wells, 254 N. Y. 451, 457). Such tokens are ready at hand in the present case. True enough, it has been said, with great positiveness that to prevent intestacy in such a situation it is not enough that “ ‘ the testator should have signified his intention by his will that his heir or distributee should not inherit any part of his estate ’ ” (Pomroy v. Hincks, 180 N. Y. 73, 75, supra; Matter of Trumble, 199 N. Y. 454, 465, supra). But we reach a point where a clearly and unmistakably expressed negative is as complete and unavoidable a statement of intent as if cast in the affirmative. We cannot read paragraphs Eighteenth and Nineteenth other than as a direction that the survivors of the named eight persons take the whole residue.

The order appealed from should be modified accordingly, with costs to all parties appearing and filing briefs.

Scileppi, J. (dissenting).

In reversing here, the majority

purportedly leaves undisturbed the principle laid down in Beekman v. Bonsor (23 N. Y. 298) and followed in Wright v. Wright (225 N. Y. 329) and many other cases, all of which state the rule that, where a residuary legacy lapses and the will makes no provision for a gift over, the lapsed legacy passes to the statutory distributees as intestate property. The majority opinion, rather, is bottomed upon a construction that paragraph Nineteenth of the will manifests the testatrix’ intention to create a right of survivorship among the surviving residuary legatees (Oliver v. Wells, 254 N. Y. 451), although, as a disinheritance clause, it is ineffective to defeat the distributee’s rights because of the absence of a gift over (Matter of Trumble, 199 N. Y. 454, 465). In support of this conclusion, emphasis is placed upon •that portion of paragraph Nineteenth which reads: “no part of my estate shall go to any except those hereinbefore mentioned.” It is contended that the quoted language constitutes more than words of disinheritance, and, when read in connection with the residuary clause in paragraph Eighteenth, demonstrates testatrix’ intention to create a right of survivorship in the residuary legatees. The trouble with this argument is that the words “hereinbefore mentioned” cannot, with any degree of certainty, be said to refer solely to the residuary legatees named in paragraph Eighteenth and not, in addition, comprehend specific legatees mentioned in previous paragraphs of her will. The usual purpose of clauses such as that contained in paragraph Nineteenth of testatrix’ will is to forestall a charge of undue influence. That this was the purpose here becomes clear upon a reading of the paragraph as a whole. There is nothing contained therein which leads to the conclusion that, aside from its normal purpose, it also embodied testatrix ’ intention to create a right of survivorship in the residuary legatees.

Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Chief Judge Desmond ; Judge Scileppi dissents and votes to affirm in an opinion.

Order modified and matter remitted to the Surrogate’s Court for further proceedings in accordance with the opinion herein, with costs to all parties appearing separately and filing separate briefs payable out of the estate.  