
    John Riker and another, as Executors of Sarah Burr, Dec’d, Resp’ts, v. John H. Cornwell et al., Impleaded, etc., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 19, 1889.)
    
    1. Wills—Bequest of residuary estate—Construction.
    A testatrix by her will, beyond a few legacies to relatives, disposed of her property to charitable societies; by the seventh clause, in case of their ■ incapacity to take and hold the legacies, she gives the sum constituting any ineffectual gift to her executors “to be applied to the'charitable uses or purposes above indicated in such manner as they shall be able, giving the same, however, to them absolutely, relying on their carrying out substantially my purposes ” By the eighth clause she. gives “ all the rest, residue and remainder of her estate, including all void and lapsed legacies, if any, not carried by the terms of the preceding clause,” in equal parts to six charitable societies. By the second clause of the last codicil to the will she provides: “Second. And I do hereby will and direct that the following named institutions, to wit (naming charitable societies), shall share any residuary estate remaining after the payment of all legacies and carrying out all trusts and provisions made by me in my said will and first and second codicils (excepting the residuary bequests given in the eighth clause of my said will) in equal shares with the institutions named in the eighth clause of my said will; and I give and bequeath the same accord ingly,_ it being my intention that the corporations, institutions and. societies hereinabove named in this second clause, together with the six corporations, institutions and societies named in said eighth clause of my said will, shall receive in equal shares the residue of my personal estate- and of the proceeds of my real estate." “ Third. If any of the legacies- or bequests given by me in this codicil should, from any cause whatever, fail to take effect, I give and bequeath the amounts of such legacies or bequests so failing to take effect, unto my executors, who shall qualify as' joint tenants absolutely, in full confidence that they, or the survivor or survivors of them, will dispose of such amounts as I would have desired myself to do.” Held, that there is a general residuary disposition of the property which carries with it everything the testatrix died possessed of and which was not otherwise effectually disposed of, that it is not confined to a specific residue, or to so much of the estate as would be ascertained after deducting it from the previous bequests, and that the residuary legatees share in the fund, capable of being increased by the falling in. of what was ill-given previously
    
    2. Same—Cobpobation—Defects in certificate of incobporation—
    How CUBED.
    It was objected that The New York Society for the Relief of the Ruptured and Crippled lacks corporate capacity to take, in that its certificate of acknowledgment was not acknowledged, and was not properly endorsed by the justice of the supreme court. Held, that the proof of the certificate by a subscribing witness was a sufficient compliance with the provisions, of the statute, and the endorsement of the certificate as “approved” by the justice was a sufficient warrant for its filing by the clerk.
    3. Same—Intention—How ascertained.
    In ascertaining the intention of the will maker, it should not be sought in particular words or phrases, nor confined by technical objection, but by construing the provisions of the will with the aid of the context, and by considering what is the entire scheme, and effect should be given to that intention which harmonizes with that scheme.
    4. Same—Residuary legatee—Extent of interest.
    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, he will take whatever will fall into the residue, whether by lapse, invalid disposition or other accident.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment of the special term construing a will.
    
      Clifford A. H. Bartlett, for app’lts; Stephen P. Nash, John E. Parsons and C. E. Tracy, for resp’ts.
    
      
       Affirming 7 N. Y. State Rep., 316.
    
   Gray, J.

—The appellants ask us to reverse the judgments-below, errors by court, will of Sarah Burr, deceased. Their principal contention is that certain dispositions of her property, made by way of' legacies for charitable and religious purposes, were invalid or ineffectual, and that such gifts neither were • carried by the provisions of the will which were made for the residuary legatees, nor vested in the persons named as executors,, under certain other clauses.

If they are right in their views, the result would be that, as to so much of her estate, testatrix had died intestate, and the next of kin would benefit correspondingly.

The testatrix died in 1882, unmarried, leaving her surviving neither child, parent, brother nor sister. Her will was made in 1866, and two codicils were subsequently executed, in the years 1869 and 1881, respectively. Beyond a few legacies to relatives and friends, she disposed of her large possessions by gifts to charitable societies, or for ■definite benevolent purposes in this and in other states and countries. By the seventh clause of the will, in case of a misnomer of any of the institutions, or of their incapacity to take and hold the legacies, she gives the sum constituting any ineffectual gift to her executors “to be applied to the ■charitable uses, or purposes as above indicated, in such manner as they shall be able; giving the same, however, to them absolutely, relying on their carrying out substantially my purposes. ” By the next following, or eighth clause, she gives “ all the rest, residue and remainder of her estate, including all void and lapsed legacies, if any, not carried by the terms of the preceding clause,” in equal parts, to six charitable societies named. The first codicil makes further bequests to various individuals and societies, and repeats the provision contained in the seventh clause of the will, designed for the case of a legacy being ineffectually .given, or becoming void. The second codicil recites the fact of there being a large increase in the residuary estate of the testatrix, since the making of her will, and previous codicil, and “in order to carry out more widely the charitable and religious purposes intended,” she makes further large bequests to a number of charitable societies. Of this last codicil, the second and third clauses are important to our consideration of the questions arising, and I give them in full.

“ Second. And I do hereby will and direct that the following named institutions, to wit: The Sheltering Arms, ■etc. (naming fourteen additional societies), shall share my residuary estate remaining after the payment of all the legacies and carrying out all the trusts and provisions made by me in my said will and first and second codicils (excepting the residuary bequests given in the eighth clause of my said will) in equal shares with the institutions named in the said eighth clause of my said will; and I give and bequeath the same accordingly, it being my intention that the corporations, institutions and societies herein-■above named in this second clause, together with the •six corporations, institutions and societies named in said ■eighth clause of my said will, shall receive in equal shares the residue of my personal estate and of the proceeds of my real estate.

Thirds If any of the legacies or bequests given by me-in this codicil should, from any cause whatever, fail to take effect, I give and bequeath the amounts of such legacies or bequests so failing to take effect unto my executors, who shall qualify as joint tenants, absolutely, in full confidence that they, or the survivor or survivors of them, will dispose of such amounts as I would have desired myself to do.

“Fourth. I hereby republish my said will and first codicil as altered hereby.”

The second clause of this last codicil, read in connection with the eighth clause of the will, constitutes as the sole residuary legatees of testatrix, twenty societies; while, in each testamentary instrument, she endeavors to prevent a failure of disposition in the gift of a legacy by substituting her executors as its recipients, in the place of the legatee for which the ineffectual gift was originally intended. A very plain intention is manifest, from a consideration of these testamentary provisions, that, beyond the particular-gifts to the individuals and societies named, all that remained of her estate the testatrix devoted to charitable and benevolent purposes, through the instrumentality of certain selected institutions as her residuary legatees, or of her executors where a bequest proves ineffectual. The purpose is evident to leave no part of her estate undisposed of in any contingency. Her solicitude is unmistakable that, beyond what has been given to them, her relatives-shall not share in her estate by reason of any portion of it being invalidly disposed of. With her motives, or with her reasons, we are in no wise concerned. If in her testamentary dispositions she has kept within the rules which should govern in the making of wills, those dispositions-cannot be successfully assailed by the next of kin.

The main or controlling question, therefore, which presents itself at once in this case, is whether, under the testamentary scheme revealed by these several instruments, in any contingency, the appellants, as the next of kin of the testatrix, can take any benefit by reason of a legacy failing to take effect. If they cannot, it becomes quite unimportant to discuss the many questions which they raise with respect to the capacity of legatees to take, or to the validity of certain bequests. At the outset, we may as well dispose-of the only objection which is made as to any of the-societies named as the residuary legatees. It is objected, that “The New York Society for the Relief of the Ruptured and Crippled ” lacks corporate capacity to take, in that its certificate of incorporation was not acknowledged,, and that it was not properly endorsed by the justice of the supreme court. Neither ground of objection is tenable. The proof of the certificate by a subscribing witness was a sufficient compliance with the provisions of the statute; and the endorsement of the certificate as “approved ” by the justice was a sufficient warrant for its filing by the •clerk. But even if defects existed in the proceedings for incorporation, the passage of subsequent acts by the legislature was a recognition of its incorporation and cured such defects. Coming then to the consideration of the effect of the residuary clause upon the estate of the testatrix, we are unable to perceive any ambiguity in the language which the testatrix uses, or to detect any purpose to narrow that all comprehensive import which attaches to a general residuary clause in wills. A general residuary clause includes in its gift any property or interest in the will which, for any reason, eventually falls into the general residue. It will include legacies wdiich were originally void, either because the disposition was illegal, or because for any other reasons it was impossible that it should take effect, and it includes such legacies as may lapse by events -subsequent to the making of the will. It operates to transfer to the residuary legatee such portion of his property as the testator has not perfectly disposed of. No one supposes that he has failed in his intention to dispose of all of his property by his will, and courts should endeavor to make out such an intention and to uphold the testamentary plan, so that the testator may not, as to some of his estate, have died intestate.

We think, in the present case, that the testatrix has expressed herself with absolute clearness, in making a general residuary disposition of her property, and that it carries with it everything which she died possessed of and which was not otherwise effectually disposed of. • There is the language of the eighth clause of the original will by which void and lapsed legacies are included in the gift of the residuary estate, and that of. the second clause of the second codicil by which the residuary legatees are to share the residuary estate “ remaining after the payment of all •the legacies and carrying out all the trusts and provisions made in the will and first and second codicils * * * in -equal shares.” Such language would seem to be comprehensive enough and to preclude our entertaining the idea. that the testatrix meant to circumscribe or to limit the residuary fund given to the societies and to confine it to so much of her estate as would be ascertained after deducting what she had previously mentioned in bequests.

A different purpose is emphasized by the concluding words of the second clause of the last codicil, which state that.it is her “intention that the corporations, institutions and societies hereinabove named in this second clause, together with the six corporations, institutions and societies-named in said eighth clause of her said will, shall receive-in equal shares the residue of her personal estate and of the proceeds of her real estate.”

The appellants argue that the words ‘ ‘ after payment of all the legacies and carrying out all the trusts and provisions made, etc.,” found in the second clause of the-second codicil, are words of exclusion, and are indicative of an intention to give only a specific residue. We see no-force in the suggestion. In. ascertaining the intention of the will maker we should not seek it in particular words- and phrases, nor confine it by technical objections. We should find that intention by construing the provisions of the will with the aid of the context and by considering: what to be the entire scheme of the will. The intention, to which effect should be given, should be one harmonizing-with that scheme, where no rule of law is contravened thereby. When the testatrix explicitly declares it as her intention that her residuary legatees shall receive “the residue of her personal estate and of the proceeds of her real estate,” I find no room for speculation as to intention; nor support for the proposition that the residuary legatees-take a gift of a specific residue. I find a gift to them, which comprehends all of her estate, not otherwise legally disposed of.

In the English chancery case of Springett v. Jenings, (6 Chan. App. 333, Eng. Law Rep.), cited by the appellant’s counsel upon his brief, James, L. J., points out a distinction between an all comprehending gift of a residue, and one which carries a particular residue.

By way of illustration he suggests “If I give all my £3 per cents to A, and all the rest of my government stocks to B, and the gift of the £3 per cents to A fails by lapse will they go to B? It appears to me the answer must be in the negative; for it is quite clear that the rest of the government stock was not a residuary bequest which could take in the particular thing which was given by a separate description to somebody else. * * * The failure of the first gift would not be for the benefit of the person to whom the other stocks are given.” And Hellish, L. J., says, in the same case: “Now in order that a residuary gift may * * * include lapsed and void devises, without the will expressing any intention to that effect, I am of opinion that the devise must be a real residuary devise; that is to say, so-worded as to apply to all land that is not otherwise disposed of. When a testator has made a gift of that kind, then the act says, in substance, it will be presumed from the universality of the gift that unless he expresses the contrary, he-intends it to pass what was specifically devised, if from any cause the specific devise fails.”

The words, upon which the appellants lay so much stress, as being words of exclusion and limitation, are used by the testatrix rather as words of description of a general residue. They might have been omitted without any prejudice to the intention. But their retention works no confusion of thought. That which is “remaining after carrying out all the trusts and provisions made by me in my will and codicils ” is the fund which is only completely ascertained, when the previous dispositions have been effectuated. The very sense of the words implies the negation of the idea of a specific or fixed residue outside of the sum of the previous gifts in the will.

If the “ carrying out ” of the provisions of the will and codicils is defeated to any extent, to that extent the residuary fund is increased by the accretion of the void or lapsed gift. I think the doctrine is firmly established by the reported cases, and by the text-books, 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, he will take whatever may fall into the residue, whether by lapse, invalid disposition, or other accident. Boperon Legacies (1st-Am. ed.), 453; 2 Williams on Executors (7th ed.), 1567; 2 Redfield on Wills (2d ed.), 115; Bland v. Lamb, 2 Jac. & Walk., 406; Reynolds v. Kortright, 18 Beav. 427; James v. James, 4 Paige, 115; Van Kleeck v. Church, etc., 6 id., 600; King v. Strony, 9 id., 94.

In a late decision of this court, in the Matter of Benson’s Accounting (96 N. Y., 499), Earl, J., discusses the question of when lapsed legacies fall into the residue, and reviews the-authorities, and the views expressed in the opinion sustain the doctrine which I have suggested here.

In Kerr v. Dougherty (79 N. Y., 327), which the appellants; have cited, there is no opposition to tBat doctrine; nor is it. an authority which militates against our conclusion here. In that- case, the language of the will, and the facts were such as to limit and circumscribe the residuary clause, and to prevent it from being added to by invalid legacies.

But Miller, J., in his opinion, uses this language, in discussing the rule as to residuary bequests, which is laid down in King v. Woodhull (3 Edw. Chanc., 79, 82); “It is also-said in substance, that to exclude what would fall by lapse- or invalid disposition, as it may be supposed that the testator did not intend to die intestate as to any portion of his-property, the law requires that he should use words limit- • ing the gift of the residue, and showing an intention to exclude such portions of his estate as may fail to pass.”

In Floyd v. Carow (88 N. Y., 560, 568), Andrews, J., says of a residuary devise, “the intention to include is presumed, and an intention to exclude must appear from other parts of the will.” In view of the result at which we have arrived, namely, that under this residuary clause, the legatees would share in a residuary fund, capable of being increased by the. falling in of what was ill given previously ¡by the testatrix, we think it wholly unnecessary to consider the effect or validity of the gifts to the executors. In any event, the question would be one between them and the ■charitable societies named as residuary legatees, with which these appellants are not concerned.

The judgment-appealed from should be affirmed, with •costs to the respondents, who have appeared here, to be paid out of the estate.

All concur.  