
    In the Matter of the Probate of the Last Will and Testament of John A. Disney, Deceased. Mary J. McKenna, a Next of Kin, Appellant; Fannie K. Cohn, a Legatee, Respondent.
    First Department,
    March 22, 1907.
    Will construed—when issue of deceased legatee take by implication.
    When a testator leaves the residuary estate to his stepmother and his sister in.équal portions and provides that “in the event of either dying without issue surviving, I give, devise aiid bequeath the share or portion of the one so dying to the survivor,” the issue of the stepmother take her share by implication although she died before the testator.
    Ingraham, J., dissented, with opinion.
    Appeal by Mary J. McKenna, as-next of kin of John A. Disney, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 29th day of June, 1906, in so far as such decree construes the will of John A. Disney, deceased.
    
      Edward L. Stevens, for the appellant.
    
      John F. Nelson, for the respondent.
   Houghton, J.:

On proceedings for the probate of the last will and testament of John A. Disney, deceased, the appellant, a daughter of a deceased sister of the testator, not provided for by the will, filed contesting allegations, and asked that in case of admission to probate the surrogate construe the residuary clause thereof. That clause provided as follows :

Seventh. All the rest, residue and remainder of my estate, of every kind and nature whatsoever, I do give, devise and bequeath to my mother Mary E. Disney, and my sister Fannie K. Cohn in equal shares or portions, to have and to hold the same absolutely and forever ; and in the event of either dying without issue surviving, I give, devise and bequeath the share or portion of the one so dying to the survivor.”

Although mentioned as mother, Mary E. Disney was the stepmother of the testator, she having married his father and had two children by him, Fannie K. Cohn and Charles S. Disney, who were hence brother and sister of the half blood of testator. The son Charles had died leaving a daughter, Florence, an infant, who is still alive.

Mary E. Disney died before the testator, and it is conceded that certain bequests to her in prior portions of the will lapsed and fell into the residuary clause above quoted.

The surrogate held that Fannie K. Cohn, the survivor of the residuary legatees, took.the whole of the residuum, and so decreed.

The appellant contends on her appeal therefrom that the testator died intestate as to one-half of the residuum, because Mary E. Disney did not die “ without issue surviving,” and thus fulfill the condition of the gift over to the survivor, for she, in fact, left her surviving Fannie K. Cohn, her daughter, and Florence Disney, her granddaughter.

The respondent insists that the word issue ” should be held to mean children only, and that the testator, understanding, fully the situation of affairs, intended the term £i dying without issue surviving” to apply to Fannie only; and that in the event of her death •prior to his own without issue, and the survival of the mother, all was to go to her, and that .if the mother should predecease him all was to go to Fannie.

Little is to be gathered from the context of the will which throws light upon the meaning of the testator, aside from the fact that the dominant idea was to provide for his mother and his half-sister, Fannie-EL Colin. Both were made, executors, and no bpquests were made to- any other of his relatives aside from $1,060 each to his two living sisters and the same sum to the child of Fannie: * ■

The primary meaning of “issue” or “lawful issue” is descend ants,, and in the absence óf the use of the words -in a will in another .sense they will be so. construed. (New York Life Ins. & Trust Co. v. Viele,. 161 N. Y. 11; Chwatal v. Schreiner; 148 id. 683.)

In' our view of the case so far as the question presented upon this appeal is concerned, it is unimportant to determine whether the testator used the word “ issue ” in its broad or restricted sense, or to' .enter-into refinements as to whether the word is used respecting, Fannie alone or applies to both the residuary legatees;. for we are of the opinion that in no event has the appellant any interest in the estate of the testator.

Even if Fannie K. Colin did not take the whole of the residue as the survivor of the two residuary legatees, we think there was a gift by implicatio'n to the issue of Mary E. Disney, and hence that' the one-half of the residue which she would' have taken had she lived,.passed.under the-will to Fannie, her daughter, and to Florence,, her granddaughter..

The testator having executed his will is presumed to have intended to dispose of all his property, and if possible from fair intent,, the courts- will so -construe its provisions as to prevent intestacy of any part. Especially' is this rule -true of a residuary clause. (Lamb v. Lamb, 131 N. Y. 227.)

The position of the appellant is t-hat the surviving residuary legatee cannot take "because Mary E. Disney did not meet the condition of the will and die without issue, and hence that because she died With issue thei-e was. no disposition of .the oñe-half of the residue. .

.The' words'“ dying without issue surviving” must ,be presumed to have been, used for some purpose.' Fannie had a child to whom the testator had bequeathed $1,000. If both the mother and Fannie had- predeceased the testator, unless these words- be given some effect, although both may have left issue, the testator must in such Casé have been held to have died intestate as to the residue of his estate. Having-Used the word's “ dying.without issue surviving.” can it bé said that he intended to die intestate if-both died before-himself and each left issue surviving her? Ho such intent can be imputed except from necessity. The more reasonable hypothesis is that in case either died leaving issue, such issue should take in place of the one so dying.

Bequests and devises by implication are not infrequent. Where land is devised to the heir after the death of A, although no specific life estate is conferred upon A, he takes one by implication.

In King v. Barker (3 Bradf. 126) the testator devised and bequeathed the residue of his estate to children of his deceased brothers as tenants in common, and provided as follows: “And should either of the said seven children die before me, without leaving añy child or .other descendant, I hereby give, devise. and bequeath the residuary share or portion of the one so dying to her or his surviving brothers or sisters.” One of the residuary legatees having died before the testator leaving children, it was held by the surrogate although there was no express gift, that tlierd was an implied gift to such children.

The opinion in the above case is a logical and learned one, and refers to the authorities sustaining the holding at hand at the time it was written. The question does not appear to have been considered by any other of the courts of this State. In England, however, the question has been considered in several cases.

By the will considered in Ex arte Rogers (2 Madd. 449) a sum was given to a niece “ and at her decease without child or children ” over to another. The legatee died leaving children, and it was held that there-was a gift by implication to.her children and that the money did not pass to the contingent legatee.

Bequests by implication founded on the same principle were held to have been effectual in Abbott v. Middleton (21 Beav. 143) and in Crowder v. Clowes. (2 Ves. Jr. 449) and in Wainewright v. Wainewright (3 id. 558) and in Dowling v. Dowling (L. R. 1 Eq. Cas. 442). The rule was applied in Holton v. White (23 N. J. Law [3 Zab.], 330).

Whether the entire residue passed to Fannie or whether the one-half was divided between her and the granddaughter, Florence, is not before us to specifically decide. In our opinion the testator did not die intestate as to any part of his residuary estate, and so far as tnis appellant is concerned she has no interest in the estate whether it passed one way or the other. Fiot’having any interest, whether the decree of the. surrogate-was right or wrong, as. between Fannie Eh Colm and Florence Disney is of no.importance to the appellant, and the decree must be affirmed, .with costs. .

Patterson, P, J., McLaughlin and Clarke, JJ., concurred; ' Ingraham, J., dissented.

Ingraham, J: (dissenting):

The testator died on the 7tli day of January, 1906, unmarried . and without issue,- leaving his brothers and sisters and descendants of a deceased brother .and sister his-heirs at law and next of kin. He left a last will and testament, which was presented for probate. Hpon the probate proceeding the parties interested requested the surrogate to construe the will. "After a bequest and-devisé .to Mary " E. Disney, he disposed of the residuary estate by the 7th ¿lause of the will -as follows: “Seventh. All the rest, residue and remainder’ of my estate, of every kind and nature whatsoever, I do give, devise and bequeath to my mother Mary E. Disney,, and my sister Fannie Eh Colin, in equal shares or portions, to have and to hold the same absolutely, and forever; and in the event of either dying without issue surviving, I give, devise and bequeath the share or portion of the one so dying to tlie survivor.”

Mary E. Disney was-;the testator’s stepmother.. She died before the testator, and the question presented is as to what disposition, .if any, was made of the Undivided half of the residuary estate devised .and bequeathed to her. -The surrogate construed the will as giving to Fannie Eh Cohn the whole of the residuary estate. - The appellant claims that as the legacy to Mary E. Disney lapsed in consequence of her death before the testator, he died intestate as to the half, of the estate so devised and bequeathed to her. The property was given to Mary E. Disney and Fannie Eh Cohn equally as tenants in common. (Matter of Seebeck, 140 N. Y. 241; Matter of Kimberly, 150 id. 90.) If Mary E. Disney had survived the testator, she would have been entitled to an undivided share of, this property as tenant in common. .Thé testator then provided that in the event- of her death, “ without issue surviving,” her share or portion should go "to the survivor. She did not 'die without issue surviving, but had living issue,, a daughter and grandchildren. The testator could not have understood that by this provision of the will, if she had left issue surviving that her share should go to the survivor. He probably thought that in the event of her dying leaving issue surviving the share would go to the issue, hut this is mere speculation. The will, however, is clear and unambiguous. He gave one-lialf of his residuary estate to his stepmother, and then provided that in the event of her dying without issue surviving, the whole of the residuary clause should go to his sister Fannie. The mother did not die without issue-surviving and, therefore, the contingency upon which Fannie should take the whole of the residuary estate did not happen. Certainly the will does not directly give to Fannie the whole of the residuary estate in the event of his mother dying leaving issue surviving; and it seems to me that there is .no indication for an intention that the testator’s sister Fannie should have the whole residuary estate, except upon one condition mentioned, namely, the death of his mother without issue surviving. We do not know what the testator had in mind in making this will and we are restricted, therefore, to the express language used.

It is settled that if the residuary of the estate is given to several in common and one of them dies, the legacy lapses and the testator died intestate as to such share. (Floyd v. Barker, 1 Paige, 480; Hard v. Ashley, 117 N. Y. 606.) In the latter case Judge G-ray says: “The fact that one of the legatees, Lucretia Bice, predeceased the testator does not affect the question of distribution, otherwise than that, as the result of her death was to cause her legacy to lapse and to fall into the residue, her share in the residuary estate is undisposed of and passes to the next of kin. The lapse, by death, of the legacy does not disturb the proportions, and, of course, it does not become distributable among the other legatees. As to that portion of the residuary estate the testator died intestate.”» It is a settled rule that where the language of a residuary clause is capable of more than one construction the court will favor the construction.that will prevent intestacy ; but the application of this rule does not allow the court to make' a new will for the testator which will dispose of the property in a way not justified by any reasonable construction of the will. The testator certainly must have meant something by inserting the words'“without issue surviving,” and he could only have meant that the condition upon which the survivor of the two legatees should take was the dying of the other legatee without issue surviving. If we assume that the testator considered that upon the death of his stepmother leaving. issue, the share devised to her would go to the issue, we cannot give effect to that understanding because the law steps in and says that a legacy to a person dying before the testator lapses, except the case of a descendant of the testator leaving issue. Whatever understanding, the testator had as to the effect of the death of liis mother before his own cannot overcome a settled rule of law as to the lapsing of a devise or legacy.

I think that the lapsed bequest and devise to liis mother in the' 2d and 3d clauses of the will became a part of the residuary estate, and that Fannie K. Golm was entitled to one-lialf of the whole estate, including these lapsed legacies contained in the 2d and 3d clauses of the will, and that, as to the other half of the residuary estate, the testator died intestate, and it passed to his heirs at law and next'of kin.

The decree appealed from should" be modified accordingly, with costs to all parties who have appeared on this appeal, payable out of the estate. " .

Decree affirmed, with costs. Order filed.  