
    Clara A. Lamb et al., Respt’s, v. Mary C. Forsyth et al., Applt’s.
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Will—Residuary clause—What passes under.
    The "will of a testator devised a life estate in real property to his "wife,. “ and the remainder in fee * * * • to certain of my descendants as. hereinafter mentioned.” Two of the lots he gave to his daughter Sarah, for life, and in case she married and had children, to her descendants.. She married, and died childless, prior to the death of testator’s widow. Held, that testator did not die intestate as to these lots, hut that the same-fell into the residuary estate of testator, and passed under a general residuary clause ofhis 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, yet there was no clear indication that the testator intended to limit the residuary clause to personal property.
    2. Same—Surplus.
    The fact that the word “ surplus ” has a more appropriate application to ■ personal property or money is not decisive against construing it as including real estate also.
    - Appeal from judgment of the supreme court, general term,, first department, affirming interlocutory judgment rendered upon, the report of a referee.
    
      William B. Hill, for app’lts; George F. Martens and Alfred 71 Thacher, for resp’ts.
    
      
       Affirming 37 St. Rep., 699.
    
   Andrews, J.

Anthony Lamb, a resident of the city of New York, died in May, 1855, leaving a widow and five children surviving him and the issue of four daughters who had died before him. He left a large real and personal estate. By his will he devised specifically each part of his real estate and bequeathed various legacies and annuities.

By the second clause of his will he gave to his wife a life estate-in certain lots in the city of New York, and following the gift of the life estate are the words: “And the remainder in fee I-give; and devise to certain of my descendants as hereinafter mentioned.”' By the sixteenth clause he disposed of the lands wherein a life-estate was given to his wife, to fo’ur of his children, as follows r; Two of the lots to his son John in fee simple, two to his daughter Agnes Richards for life, and at her death to her descendants then living, and two to his daughter Sarah (then forty years of age and unmarried) for life, and the remainder as follows: “And should she marry and have children I give and devise said lots at her decease to her descendants thtin 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 the whole to such only-descendant.”

The daughter Sarah married after the death of the testator and died September 3, 1886, childless. The widow of the testator-died" in October, 1889. ^

This controversy relates to the lands devised to Sarah in the sixteenth clause of the will. It is claimed on the part of the appellants that upon her death without issue the lots descended, to the heirs-at-law of the testator as in case of intestacy, subject-to the life estate of the testator’s widow.

It-is claimed on the part of the respondent that on the death of Sarah the fee of the lands passed under the twenty-third clause of' the will to the testator’s sons John, George and Anthony, and his daughter Agnes, as a part of his residuary estate. The construction of this clause is the only point in controversy, that is to say, whether the residuary clause relates to personalty only, or includes as well lapsed devises and any interests in realty not effectually disposed of in other parts of the will.

The devises and legacies are contained in the clauses of the will preceding the twenty-second. In some cases the devises to his-children and grandchildren are in fee. But the general scheme of the testator was to create a life estate in the first taker, with remainder to his descendants living at his death. The devise to his son John of a lot on Pearl street in the third clause; to his son George of lots on Third and Fourth streets in the fourth clause ; the devise in trust for the benefit of his son Anthony in the seventh clause; to the children of his deceased daughter Matilda-in the eighth clause, and the devises in the sixteenth clause to his-daughters Agnes and Sarah already mentioned were framed on this principle. All the living children were married and had issue at the' death of the testator, excepting the daughter Sarah and the son Anthony. In all devises of the character referred to, the final vesting of the fee under the will depended upon the contingency of the life tenant leaving descendants surviving him at his death. In the event of the death of any life tenant without, leaving issue or descendants, the fee was undisposed of unless it passed under the residuary clause. The scope of the residuary clause is, as we have said, the turning point in the case.

The twenty-second clause of the will commences as follows: “ Twenty-secondly. Of the rest, residue and remainder of my estate I give and .bequeath,” etc., and then follow bequests of sundry-pecuniary legacies to children and grandchildren.

The twenty-third clause is as follows: “Twenty-thirdly. If the said rest, residue and remainder of my estate shall not be sufficient to pay all the above-named legacies contained in the twenty-second clause of this my will, they are each to be reduced proportionately, according to the amount of such remainder. This reduction, however, is not to apply to the legacies granted by any other parts or clauses of this my will. If after the payment of all these legacies there should remain a surplus undisposed of, I do give and bequeath the same unto my sons John, George and Anthony, and to my daughter Agnes Richards, to be equally divided between them. .

The construction of residuary clauses in wills has been frequently before the courts. ■ Inhere the language is free from obscurity, then, of course, there is no difficulty. The intention of the testator is to be followed if the actual intention is discoverable-from the language employed. There is no rule of law which pre■vents a testator from restricting the operation of a residuary clause to a particular or specific residue. He may make the residuary clause general and comprehensive, so that it shall carry any residue, whether of personalty, or realty, or both, or he may confine its operation to property of a particular class or to a particular interest. But where the language of a residuary clause is ambiguous, the leaning of the courts is in favor of a broad rather than a restricted construction. It prevents intestacy, which it is reason7 able to suppose testators do not contemplate, and if the mind is left in doubt upon the whole will as to the actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purpose, because such a clause is usually inserted to provide for contingencies or lapses and to cover whatever is left after satisfying specific and special purposes of the testator manifested in the other clauses of his will.

The court in Floyd v. Carow, 88 N. Y., 560, in considering the construction of a residuary clause in a will, said: “ The intention of the testator to restrict the operation of the residuary clause cannot be deduced from the mere absence of words in the will denoting that a particular interest or estate upon which the residuary clause is claimed to operate was in the contemplation of the testator when the will was made, or from the fact that the reversion was a mere expectancy dependent upon the failure of issue or other improbable contingency. 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.”

And in Riker v. Cornwell, 113 N. Y., 115; 22 St. Rep. 151, Gray, J., said : “I think the doctrine is firmly established by the reports of eases and 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 words of special and of unmistakable import, he will takewhateyer may fall into the residue by lapse, invalid disposition or other accident” The contention here is that the residuary clause is not general but special, and refers to personalty only, and that the perusal of the will shows an intelligent use of appropriate .legal language throughout the instrument, and it is insisted that the language of the residuary, clause should, therefore, have a strict construction and that words therein should be deemed to have been used in their exact legal sense. The will indicates that it was drawn by a competent and experienced draftsman. The words “ I give and devise are used in all cases (except one) where the will disposes specifically of real property, and the words “ I give and bequeath ” in dispositions of personalty, and the use of these phrases are frequent In the. gift of life estates to the testator’s wife the words are “ I give and bequeath,” which is the exception. „ The inappropriate use of the words “ devise ” or “ bequeath" is not generally a very material circumstance, as they are often used indifferently in wills. O'Toole v. Browne, 3 El. & Bl., 572; Allen v. White, 97 Mass., 504. But their accurate and discriminating' use in a will containing many provisions has doubtless some significance. But-the intention of the testator to dispose of all his estate by his will is quite manifest. In respect to the lands embraced in the second clause, already adverted to, he first carves out a life estate in several pieces of property for his wife, and then says, “ the remainder in fee I give and devise to certain of my descendants, as hereinafter mentioned.”

By the sixteenth clause, remainders in these parcels are given as above stated. The remainder to the children of Sarah was contingent upon her marriage and the birth and survival of issue, . and in the event, unless the fee passed by the residuary clause, it did not pass under the will. It is possible that the testator did . not contemplate that the remainder would fail for want of issue-of his children. But this would not prevent their inclusion in the residue, if the words of the residuary clause are broad enough to comprehend them. The words are not to be narrowed upon the suggestion, although plausible, that the testator did not anticipate that any of his devises would lapse.

The - learned counsel for the appellant in his argument places-great stress upon the word “ surplus ” in the 23d clause. The language of the residuary gift, “if after the payment of these legacies there should remain any surplus undisposed of, I give and bequeath the same unto my sons John, George and Anthony, and to my daughter Agnes,”- etc., refers, it is claimed, to a surplus remaining after paying thereout the legacies given in the 22d clause, ascertainable on the settlement of the estate by the executors in the usual course of administration, and has no reference to contingent interests in land, which may fail by the non-happening of the event upon which they are limited.

The word “ surplus in the 23d clause relates to what remains of the “ rest, residue and remainder of my estate,” out of which by the 22d clause the legacies given in that clause are to be paid. The residue mentioned in that clause is of the estate, and the-word estate comprehends all the residue of the property not- otherwise disposed of, real and personal, unless a limited meaning is attached thereto, by the context. O’Toole v. Browne, supra. There are no words in the 22d clause which restrict the residue there mentioned to personal property.

If there had been no personal property out of which the legacies therein given could be paid, they would we think by necessary construction be chargeable upon any real estate undisposed of by the-will, or as to which the disposition of the will should fail. It would seem to follow that if the residue mentioned in the 22d clause comprehended both real and personal property, and they were blended together as the source from which the legacies were to be paid, that the surplus mentioned in the 23d clause was the surplus of the same residue after satisfying the legacies charged thereon, that is to say, any surplus either of real or personal property. The fact that the word “surplus has a more appropriate application to personal property or money, is not decisive against construing it as including real estate also. Byrnes v. Baer, 86 N. Y., 210; Chandler's Appeal, 34 Wisc., 505.

The selection by the testator of four of his living children as his residuary legatees to the exclusion of his daughter Sarah .and the children of his deceased daughters, is consistent with his general purpose and furnishes no ground for a construction limiting the scope of the twenty-third clause. Concededly he designed to give to the selected beneficiaries the residue of his personal estate, which, after paying the legacies given in the twenty-second clause and all charges of administration, amounted to about $45,000. The intention to prefer the four children named in the twenty-third clause is also apparent from the seventh clause ■of the will. By that clause a trust is created for the benefit of. his son Anthony, and he devises to a trustee the equal undivided half of a store and lot on Pearl street, in trust to apply the rents, and profits to the use of Anthony for life, with power to sell in •certain contingencies specified, and on the death of Anthony to sell the lot (if not sold before) and divide the proceeds among the ■children of Anthony or their issue living at his death. Then follows a gift over in these words: “And in case my son shall die without leaving any descendants, then the principal sum shall revert to and form a part of my residuary estate.”

It will be observed that the share of Anthony is given over on his death without leaving descendants, to the four residuary legatees specified in the twenty-third clause. The will shows an intention by the testator not to divide his estate equally among his ■children and the representatives of deceased children. The discrimination is marked throughout the will. It seems that the testator’s son Anthony is still living, but is childless, and it is prob•able that the trust estate will go to the residuary legatees under the disposition in the seventh clause.

The argument that the testator could not have intended to postpone the taking effect of the residuary gift beyond the ordinary period of' administration, and did not embrace devises that might lapse by the death of devisees without issue at a remote period, is entitled to but little weight in view of the provision as to the ■ultimate disposition of Anthony’s share contained in the seventh clause. There is no apparent reason why the testator should intend that the share of Anthony should, in default of issue, pass to the residuary legatees, and not the shares of the other children .in the same contingency. The.design may have been expressed in the case of Anthony with more distinctness than in the ether cases from the fact that having constituted a trust fund it was quite natural that the testator’s attention would be specifically called to its ultimate disposition when the trust should terminate.

We have been impressed in this case with the difficulty which •often attends the search for the intention of a testator. Many of the rules which courts have adopted as guides in ascertaining the intention of testators assume an intention from words, and phrases, where often it is very doubtful whether they were used with any intelligent n'ppreciation of the legal meaning given to them. But these rules have become in many cases rules of property and work out perhaps in the majority of cases results as nearly just as may be. It is better to adhere to them in their integrity than to permit exceptions upon slight grounds.

The rule that in the interpretation of wills residuary clauses are to be given a broad rather than a narrow interpretation, has a stronger foundation in natural reason than have some of the other rules adopted by courts.

In this case we do not think there is found in the will so •clear indication that the testator intended a restricted meaning to "the residuary clause as to justify the court in limiting it to personal property.

This leads to an affirmance of the judgment below.

Judgment affirmed, with costs.

All concur, except Maynard, J., absent  