
    Benjamin P. Mills and Others, Appellants, v. John Albert Tompkins (Sued as Edward Thompkins) and Others, Defendants, Impleaded with Irene G. Ganun, Respondent.
    First Department,
    December 30, 1905.
    Will -—construction of residuary clause.
    When a will commences with a-statement that -the testator wishes to ‘‘.make a suitable disposition of-all such personal property,” followed by specific bequests,
    . and then states “it is my wish -and will that all other property of which I may die possessed be applied to the payment-of my. debts, and I hereby give and ' bequeath to my said wife, Mary,, all-..the rest,' residue and remainder of my .property,” etc., said residuary clause disposes of both real and personal estate and should not be construed as a. bequest of the personalty only,
    Though the word “ bequest ” he used, it may be construed to mean “ devise,” when the context so requires.
    A construction will be preferred which disposes of the whole estate and prevents partial intestacy. • • ,
    Appeal- by the plaintiffs, Benjamin P. Mills and others, from a judgment of the Supreme Court in favor of. the defendant Irene G. Ganun, éntered in the. office ¡of the clerk of the county of Yew York on "the 24th day of May, 1905, upon the decision of the court rendered after a trial' before the court without .a jury at the Yew York Trial Term. ■ • '
    
      Gcvrlisle Norwood, for the appellants.-
    
      George 8., Daniels, for the respondent.
   McLaughlin, J.:

The parties to this litigation claim to own dr have an interest in . certain real estate in the city of Yew York, to settle and determine which this action was brought. .The determination of -the question turns upon the construction -to be put . upon the will of one John Tice, who died on or about - the 31st of December, 1.832, seized of . the premises described in-’ the complaint. If the title to such real éstate passed under the will of Tice to his widow, then-the’plaintiffs have good title and defendants do not own and have no interest in such land. The trial court'reached the conclusion that the-widow never had good title because Tice intended by his will to dis-p )se of only his personal estate, and as to his real estate he died intestate.

It is true the will commences with the statement that "the testator ■ wishes to “ make a suitable disposition of all such personal property ” as he might leave, but this does not indicate, when the balance of the will is read in connection with it, an intent not to dispose of anything but personal property; on the contrary, what follows indicates, as it seems to me, a clear and well-defined intent to dispose of all his property, both real and personal.

After the recital referred to, the testator proceeded to dispose of his household furniture by gift to his wife, with the exception of certain articles which he gave to one of his daughters. He then proceeded to dispose of his interest in certain cloths manufactured in a certain factory, and then directed that certain accounts between - him and one Higgins be adjusted and a balance struck, which should be paid to his executrix and executor, to be applied by .them to the payment of his debts. Then followed this clause: “ And it is my will and wish that all other property of which I may die possessed be applied to the payment of my debts, and I hereby give and bequeath to my said wife Mary all*the rest, residue and remainder of my property, after my debts are paid, to have and to hold the same to her and her heirs and assigns forever.”

The will was evidently drafted by the testator himself or by some person unfamiliar with drafting a paper of this kind; but notwithstanding that fact,- more comprehensive language could scarcely have been used in the residuary clause if he intended to dispose of all the property which he possessed. “ All other property ” is disposed of without limitation and this is to be applied to the payment of his debts, and after such application, if anything -is left, the wife is to take “all the rest, residue and remainder.” There are no words of exclusion or limitation. The gift to the wife is “ all the rest, residue and remainder of my property.” This included real estate in which an absolute fee was given.

It is true the word “devise” is the appropriate term to pass title to real estate and “ bequeath ” the term applicable to gifts of personal property, but a strict adherence to technical words is not necessary to give effect to a testator’s intent (Lasher v. Lasher, 13 Barb. 106), and the fact that the word “ devise ” was not used does not prevent, the title to real estate passing by the use of the word “ bequeath.” (Lamb v. Lamb, 13 N. Y. 227.) The intention of a testator when it can be ascertained from the language used will be allowed to control the legal operation of words, however technical. Indeed, it has been held that words ánd phrases may be transposed, or even inserted or left out of a provision, if it becomes necessary to do so in order .to carry out a clearly-expressed intention of a testator. (Wager v. Wager, 96 N. Y. 164.) The fact that the testator made a will at all creates a fair presumption that he intended to dispose of all his property.(Byrnes v. Baer, 86 N. Y. 210), and this presumption is strengthened when it is considered in connection with. the rule which favors a construction preventing a partial intestacy. (Schult v. Moll, 132 N. Y. 122 ; Johnson v. Brasington, 156 id. 181.)

I am of the opinion,' therefore, that by the use in the residuary clause of the words all other property,” the testator intended to include his real estate. The doctrine seems to be established that where the residuary bequest is not circumscribed by clear expressions in the instrument and the title of the residuary legatee is not narrowed by special words of .unmistakable import, the residuary légatee will take whatever may fall into the residue. (Morton v. Woodbury, 153 N. Y. 243.)

If the foregoing conclusions be correct, then it follows that the title to the real estate in question passed under the will of Tice to his widow, and the plaintiffs, having succeeded to her interest, have good title to the land described in the complaint.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event.

O’Brien, P. J., Patterson, Laughlin and Houghton, JJ., concurred.

.Judgment reversed and new trial ordered, with costs to appellants to abide event.  