
    Carl Christman, Appellant, v. Andrew C. Roesch, Individually and as Executor, etc., of Maria Foehner, Deceased, Respondent.
    Second Department,
    April 23, 1909.
    Will construed — gift to executors eo nomine — when executor does not take residuary estate — partial intestacy.
    Before a gift to executors eo nomine can be held to vest in them individually, the intention that it shall so vest must he plainly manifest.
    Where a will made a specific legacy of §400 to the executor and provided that he . should have full power to sell the testator’s lands “at his best advantage and pay the abo ve requests (sic). All the rest and residue shall he used at the best of advantage of my executor who can give such papers and instruments which are required in such case,” there wras no intention to leave the residuary estate to the executor individually.
    Such construction must be given, although it will result in partial intestacy which is not favored.
    Appeal by the plaintiff, Carl Christman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of July, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint on the merits in an action for the construction of a will.
    The testatrix made several bequests of specific amounts, aggregating $2,400, including one of $400 to Andrew C. Eoesoh, whom she later named as executor. Immediately following those bequests she used this language, viz.: “ I empower my executor hereinafter named who shall have full power and consent and without security or bonds to sell and convey the house ETo. 49 Scholes Street, at his best advantage and pay the above requests all the rest and residue shall be used at the best of advantage of my executor who can give such papers and instruments which are required in such case.” The estate of the testatrix consisted of said house, and of personal property, in addition to household goods and jewelry, amounting in value to about $168. She was survived by the plaintiff, her brother. The will was drawn by a relative of tlie executor, who received his instructions from the testatrix in Geripan.
    
      
      Louis Frankel [Julian B. Beaty and Job E. Hedges with him on the brief], for the appellant.
    
      Louis J. Halbert, Jr., for the respondent.
   Miller, J.:

Prior to the statute (11 Geo. IV & 1 Will. IV, chap. 40) the undisposed of personal estate of the testator vested in the executor beneficially ; but any expression in the will indicating a contrary intention, for example, one giving the executor a legacy, was seized hold of by the courts of equity to prevent that result. (Farrington v. Knightly, 1 P. Wms. 544; Southcot v. Watson, 3 Atk. 226; Andrew v. Clark, 2 Ves. Sr. 162; Bennet v. Batchelor, 1 Ves. Jr. 63.) In Cradock v. Owen (2 S. & G. 241), decided in 1854, a testatrix gave to two devisees, who were also her executors, all her real and personal estate in trust for sale. She then directed that her executors should each retain out of the proceeds of the sale of the real and personal estate the sum of fifty pounds for his trouble. She then made certain bequests to legatees by name, but did not otherwise dispose of her residuary estate. It was held that the gift of the fifty pounds to the executors excluded them from any beneficial interest in the estate, and there being no next of kin, that the personal estate went to the crown. In Saltmarsh v. Barrett (29 Beav. 474) the testator gave legacies of nineteen guineas to each of his executors and then bequeathed the whole of his estate to them absolutely. He then charged his estate with certain legacies and directed the executors to deduct their costs, charges and expenses from any moneys of his estate coming to their hands. The master of the rolls held that the executors took as trustees for the next of kin, the ¡irincipal reasons for that construction being the gift of the pecuniary legacy and the direction for the payment of the executors’ costs and expenses. Hpon appeal the court was divided and the appeal was dismissed, without costs. (3 De G., F. & J. 279.) It will be noticed that, in that case, the testator in terms bequeathed the whole estate absolutely to the executors and then confirmed the absolute nature of the bequest by charging upon it certain legacies.

The law in this State is that “ before a gift to executors eo nomine can be held to vest in them individually, the intention that it should so vest must be plainly manifested.” (Forster v. Winfield, 142 N. Y. 327.) The question is, then, whether the intention of the testatrix to give her residuary estate to her executor individually has been plainly manifested. I do not think it has. The meaning of the words all the rest and residue shall be used at the best of advantage of my executor,” standing alone, would not seem to me to be free from doubt; but, when coupled with the direction to the executor to sell the real estate at his best advantage,” the doubt is greatly increased. Plainly, by the latter expression, she meant the advantage of her estate, not the personal advantage or benefit of the executor; and I see no reason to think that the two expressions were used in different senses, especially when the provision that the residue shall be used at the best advantage of the executor is immediately followed, without separation, by the provision that he can give such papers and instruments as are required. It seems to me that there is much reason to think that the testatrix had in mind only the sale of the real estate to the best advantage of the estate and the payment of the pecuniary legacies from the proceeds of the sale. It is quite probable that she thought that would exhaust the estate. Certainly, if the executor was to have the residuary . estate, there could be no occasion for him to give “ papers and instruments” in respect thereto. Manifestly, the papers and instruments which the testatrix had in mind were those which might be required on the sale of the real property, and the position of the expression in reference to giving papers and instruments shows, or tends to show, that, by the paragraph quoted in the above statement of facts, tlie testatrix was attempting only to provide for the sale of the real estate to the best advantage of her estate and the payment of the pecuniary legacies therefrom. Moreover, the gift of the specific sum of $400 to the person by name who was afterward named as executor, in connection with the fact that she referred to him only as executor in the paragraph under consideration, increases the doubt, if indeed it does not altogether remove it and show that the legacy of $400 was the extent of the beneficial interest which she intended to give him. If he was to be the residuary legatee, there was no reason to give him a general legacy. At any rate, the case is too doubtful to allow the executor to take the residue.

Of course, in this case we have to assume that the will before us is the will of the testatrix, that the draftsman drew it according to the instructions received by him. His testimony would seem to indicate that perhaps he did not interpret correctly. If he did not, then the instrument before us is not the will of the testatrix. It frequently happens that the draftsman of a will is also made executor. It would be very easy for the draftsman, under the circumstances disclosed in this case, to incorporate such a provision as is found in this will without the testator ever suspecting that he had made his executor his residuary legatee and devisee.

The will in Matter of Hollohan (6 Dem. 166 ; 1 Sil. Super. Ct. 380) was unlike this one. There there was no ambiguity in the residuary clause, the executor was referred to by name, and he had not been given a pecuniary legacy. It is true that this construction will result in partial intestacy, which is not favored, but that does not overcome the weightier reasons for not allowing an executor to take the residuary estate unless it is plainly given to him.

The judgment should be reversed and, as the facts cannot be changed, judgment directed for the plaintiff.

Hirschberg, P. J., Woodward, Jerks and Rich, JJ., concurred.

Judgment reversed and judgment directed for the plaintiff, without costs.  