
    Clara A. Lamb et al., Resp’ts, v. Samuel T. Lamb et al., App’lts and Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    
      1. Will—Residuary clause—What passes under it.
    The will of a testator devised a life estate in real property to his daughter and provided for its further disposition in case she married and had children. She married and had no children. Held, that the testator did not die intestate as to this property, but that the same fell into the residuary estate of the testator and passed under a general residuary clause of his will; although the word “devise" was not used in said clause, and although the clause apparently related only to the division of certain personal property.
    2. Same—Construction.
    The intention of the testator is controlling, and where from a reading of the will it is apparent that he did not intend to die intestate as to any of his property, this consideration will outweigh any arguments based upon strict rules of law or upon the use of or the failure to use particu- „ lar legal expressions.
    Appeal from an interlocutory judgment rendered upon the report of a referee.
    
      William B. Hill, Merrill & Rogers, R. W. Townsend, Spencer Clinton and Herman Dike, for app’lts ; Amundson & Ward, G. G. & F. Reynolds, Alexander & Green, George F. Martens and Frederic A. Ward, for resp’ts.
   O’Brien, J.

Seldom is difficulty found in determining the rules that should govern in cases involving the construction of wills, but when we attempt to apply these rules to a given case, the difficulty at once becomes manifest.

The present furnishes a good illustration. The referee in his opinion correctly states the facts and the questions in controversy as follows:

“ This action is brought for the partition of certain real property situated in the city of New York. All parties claim through one Anthony Lamb, who died in May, 1885, seized of the premises in question, and leaving him surviving five children, and the descendants of four other children, who died in his life-time.
“ By the will he devised the property in question to his daughter Sarah, subject to a life estate therein in favor of the testator’s wife Violetta. The language of the devise to his daughter Sarah is that ' she have and hold the same, with the rents, issues and. profits thereof, during her natural life, and for her sole, separate and peculiar use, and, should she marry, not to be liable for or charged with the debts of her husband, and, should she marry and have children, I give and devise said lots at her decease to her descendants then living, if more than one, to be divided among them in the same manner as if she had died seized of the same intestate, but, if only one, then to such only descendant.’ Sarah Lamb thereafter intermarried with the defendant, Adam O. Gillespie, and departed this life September S, 1886, childless, having made a will whereby she devised and bequeathed all her property, real and personal, to her husband. Violetta Lamb died in October, 1889.
“ The important question for consideration in this suit is whether the said, real property upon the death of Violetta Lamb, and by reason of the prior death of Sarah Lamb Gillespie without leaving any children, became part of the residuary estate of Anthony Lamb; or whether there was an intestacy as to this portion of his property, and if so, what right or interest therein does the defendant Adam 0. Gillespie take by reason of the will made in his favor by Sarah L. Gillespie.
“ It is evident from a perusal of the will of Anthony Lamb that almost every possible contingency was provided for, except the one that actually occurred, namely, the decease of Sarah L. Grilles-pie without leaving children, and the language of the will in those clauses which apparently refer to the ' rest, residue and remainder ’ of the testator’s estate, after the specific devises to his children had been made, does not use the word ‘devise,’ but apparently contemplated only a division of certain personal property. It is, therefore, claimed that the property in question cannot fairly be included in that residue of the estate which was in the testator’s mind at the time of the execution of his will.
“ I am, however, of opinion that under the law of this state this, property forms part of the residuary estate.”

The learned referee bases his conclusion on the cases of Floyd v. Carow, 88 N. Y., 560; Riker v. Cornwell, 113 id., 115; 22 N. Y. State Rep., 151, and Cruikshank v. Home for the Friendless, 113 N. Y., 337; 22 N. Y. State Rep., 738.

These contain a review of the earlier cases, and, apart from their able¡ studied and careful treatment of the questions involved, are the latest, and so far as applicable, the controlling authorities. We can, therefore, as did the referee after a statement of the facts in this case, rest our conclusion upon the principles laid down in these cases.

An examination of the will shows it to be, as claimed, an exceedingly well and carefully drawn instrument, and a master piece of thoughtful foresight and technical precision. It was evidently prepared by a skillful lawyer, and is in every respect a model will. In it every word is used in its accurate and legal sense and in its proper technical connection. Every point is covered and every contingency provided for so far as human foresight could accomplish.

Wherever real estate is sought to be affected the language is of the utmost technical precision, and where only personal property is sought to be affected the language used is strictly accurate. The testator, besides much personal property, had a great many different and distinct parcels of real estate, each one of which was specifically devised to particular persons. At first blush it might seem as if no portion of this real estate was intended to form part of the residuary estate.

This view is strengthened by the absence in the residuary clause of technical words strictly applicable to real estate and inferences that can be drawn from other parts of the will, as instanced by the clause marked “ Seventhly.” This clause after directing the conversion of the real estate in Pearl street into personalty in trust for his son Anthony, further directed that in case his son Anthony should die without leaving any descendants, then the said “ principal sum shall revert to and form part of my residuary estate.” As we find no similar provision with reference to the devises made of the balance of the real estate, the rule of expressio unius est exclusio alterius would seem to be applicable. Again we find that the devises made are everywhere accompanied by the same language, creating the same estates. It would thus follow that any other parcel of real estate devised to children or grandchildren would, as in the case of his daughter Sarah, upon a failure of any of the conditions on which it was limited, fall, as it is claimed this does, into the residuary. These' after all are but arguments drawn, it is true, from the will itself, but which are answered by other provisions of the will and by principles which must be held to outweigh them.

As has been oft repeated, the intention of-the testator is first to be ascertained and then carried out.

Such intention is to be determined by the entire instrument, and when ascertained “it is the pole star by which courts must be directed in the administration of justice.” Van Kleeck v. Dutch Church, 20 Wend., 457.

The presence in the residuary clause of language more peculiarly applicable to personalty than to real estate • is not controlling, nor the fact that we there find no technical words of descent or power of sale.

If the real meaning and intention of the testator and his plain and definite purposes are endangered by inapt or incorrect modes of expression, and we are sure that we know what the testator meant, the court may reject words and limitations, supply them or transpose them, to get at the correct meaning. Phillips v. Davies, 92 N. Y., 204; Pond v. Bergh, 10 Paige, 140.

Where an intention, therefore, is apparent, little weight is to be given to arguments based upon the use of inapt phraseology. The main reliance of the appellants in claiming that the residuary clause does not cover this land is the failure to use apt or technical language upon the part of the testator. As stated, however, no matter what words a.testator uses to express his intention, that intention when it can be ascertained must govern. Allen v. White, 97 Mass., 504.

The care observed by the testator in providing for every possible contingency shows that he had no intention of dying intestate. It may be true that it did not occur to the testator that any portion of his real estate, which he had specifically devised with limitations ovér, would lapse so as to fall within the residuary estate. Mevertheless, the residuary clause is sufficiently broad in its language and scope to embrace either real or personal property, or both, and the intention of the testator is sufficiently clear to justify the conclusion that all his property, both real and personal, which for any reason should fail to take effect or lapse should constitute a portion of such residuary estate. His language thrice repeated is, “ all the rest, residue and remainder of my estate.” As said by Lord Campbell in the case of O'Toole v. Brown, 3 Ell. & Bl., 572: “ The rule is well settled * * * that the word ‘ estate ’ in the will is sufficient to carry real as well as personal estate, and that this force is to be given to it unless something appears upon the will to show that it was used in a less extensive signification * *” and again, “ although there be no indicatory words intimating expressly an intention to dispose, of the whole of this property, real and persohal, is there anything to show that he meant to die intestate as to real estate, if he bad any.

“Reliance was placed upon the absence of the word ' devise,’ which is technically applicable to real estate; but the words ‘give’ and ‘ bequeath’ are quite sufficient"

The rule thus stated which prevails in England is similar to the one which is applied in this state.

In case of doubt the law prefers that construction which will prevent a partial intestacy to one which will uphold it Vernon v. Vernon, 53 N. Y., 351; Thomas v. Snyder, 43 Hun, 14; 6 N. Y. State Rep., 592.

It is likewise well settled in this state that a general residuary clause includes all property of the testator not otherwise disposed of, and that there is no difference between lapsed legacies and lapsed devises as re'spects the operation upon them of a general residuary clause. The presumption is that a general residuary clause includes everything not otherwise well disposed of and the burden rests upon the heir-at-law or next of kin to show that the testator did. not intend his residuary clauses to include such property.

As said by Andrews, J., in Floyd v. Carow, 88 N. Y., 568, “A general residuary devise carries every real interest, whether known or unknown, immediate or remote, unless it is manifestly excluded. The intention to include is presumed, and an intention to exclude must appear from other parts of the will or the residuary devisee will take.”

In Riker v. Cornwell, 113 N. Y., 115; 22 N. Y. State Rep., 151, Gray, J., says: “A general residuary clause not circumscribed by clear expressions in other parts of the will, includes any property or interest of the testator'which are not otherwise perfectly disposed of, and all that for any reason eventually falls into the general residue.”

The general scope of the will under consideration, and the general scheme disclosed by it, negative the idea that the testator intended to die intestate, either as to the residuary real estate generally or as to this particular property or any reversionary interest therein.

By this will the testator meant to dispose of his whole property of every kind. There certainly is no clear indication of any contrary intention. The language used in reference to his residuary estate is general and in no way restricted.

While he may have failed to recognize that certain possible interests in real estate might not vest, still the general intent is apparent in the residuary clauses, to dispose of whatever was left, whatever it might be. Words indicating a particular consideration of each item or class of property aré not essential. Language showing the general intent is all that is necessary.

We do not find any limiting words in the residuary clause confining it to any particular fund or description of property, or to any certain residuum, which is present in the cases relied upon by appellants.

Having, therefore, reached the conclusion upon the reading of the will itself that the property involved passed under the residuary clause, it remains only to consider what weight should be given to the arguments derived from the circumstances that certain of the respondents upon the accounting of the executors and by the allegations in their complaint in this action, occupy a different/position from that which by the judgment is secured to them.

It would be a harsh rule indeed in a proceeding for an accounting taken by executors or in an action brought for the construction of a will, to apply the doctrine of estoppel so that parties who in ignorance of their rights, and of their legal position, by honestly setting forth what they regarded their interests in the litigation to be, should thereby be prevented from obtaining the benefits derived from a judgment in their favor, which determined that their interests were greater than originally claimed by them. When we consider the character of executors’ proceedings upon an accounting or the nature of an action brought for the construction of a will, persons who submit their rights to the court, accompanying them, it may be, by a statement of their claims, should not thereby be estopped from subsequently obtaining the benefit of a judgment which determines that their rights are .greater than those originally claimed or asserted by them.

Another question passed upon by the referee related to the claim advanced by the defendant Adam 0." Gillespie. His failure to appeal would justify our omitting all reference to his com tention; but it may be as well to dispose of the issue of law raised on his behalf

He claims that the fee in the lots in question immediately on the death of Anthony Lamb vested in the children and heirs-at-law of Anthony Lamb, subject only to the devise in favor of and upon the birth of children to his wife, Sarah, and that the fee having so vested, Sarah could devise her one-ninth interest in the lots to him. This contention cannot be sustained, whether the conclusion reached is that this property passed to the residuary devisees or by reason of intestacy went to the heirs-at-law, for the reason that the will gave to Sarah a life estate only, and that in the whole premises. She was not to have, therefore, a fee in one-ninth. Having but a life interest there was no interest to pass under the will to her husband.

The judgment of the referee should, therefore, be affirmed, with costs and disbursements.

Daniels, J.

I think the testator intended to include real as well as personal property in his final directions. What he referred to was his estate and that aptly included all he had to finally dispose of, whether personal or real property.

The judgment should be affirmed.  