
    In the Matter of the Final Accounting of Samuel R. Wells, as Executor of Eunice B. Cooke, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Wills—Devise—Word “heirs” in—Construction of.
    A testatrix after certain bequests, by the tenth clause of her will disposed of all the rest residue and remainder of her estate, by giving one-eighth part thereof to each of five persons named, and one-eighth part to the children of each of three other persons, and after stating the legatee or legatees, added the words “to have and to hold the same to them, their heirs and assigns forever.” Four of the persons named as legatees died after the making of the will, and before the testatrix. It is contended on behalf of the heirs and representatives of the deceased legatees that there was no lapse as to the legacies to them basing their argument upon the habendum clause and also upon certain facts, viz.: that the estate of the testatrix had come entirely from her husband, that she died leaving neither parent or descendent, that the persons selected as residuary legatees were all next of kin of her deceased husband—as constituting some evidence to treat the bulk of her estate as a moral trust from her husband, and to return it to his relatives. Held, that the words in the habendum clause do not import the. meaning contended for; that in the absence of express words to prevent a lapse, or something in the context to indicate a contrary intention, the words should be given their usual and primary meaning in accordance with the general rule of construction.
    2. Same—When legacy or devise will lapse.
    At common law a legacy or devise will lapse and become void, where a legatee or devisee fails to survive the testator, unless an intention to the contrary is perfectly clear.
    
      3. Same—Word “ heirs ’’—Does not indicate intention.
    Such an intention cannot be made clear by the addition of the word. . “heirs,” for that is a word of limitation.
    4. Same—Common law bulb not abrogated by the Revised Statutes—
    How ear modified—3 Rev. Stat., 66 § 53.
    The rule of. the common law was not abrogated, but was modified by the Revised Statutes (3 Rev. Stat., 66, § 53), to the extent that where the devise or bequest was to a child, a descendent of the testator, who dies in' his life-time, leaving a descendent who survives the testator,the estate or interest given vests in the descendent of the legatee or devisee.
    5. Same—When intention should not be imported into use of words of
    INHERITANCE.
    Although words of inheritance are now unnecessary to convey a fee and are mere surplusage, that is not sufficient reason to import into their use the expression of an intention that they shall be taken as words substituting in the place of a pre-deceased legatee or devisee, his heirs.
    6. Same—Evidence admissible to explain ambiguity.
    The rule is undoubted that evidence is admissible in aid of the exposition of a will in all cases where a difficulty arises in applying the words of a, will to the. subject-matter of the devise, caused by ambiguity or obscurity."
    7. Same—Intention of testator will be given effect to—How certain;
    WORDS CONSTRUED.
    Wherever a testamentary intention is clear, the courts will go far to give it effect; they will convert “ and ” into “ or,” and construe words of limjtation.as words of purchase, or words of purchase as words of limitation.
    Appeal from a judgment supreme court, general term, fifth department, affirming a decree of the surrogate of Seneca county, making a final distribution of the assets of the estate of Eunice B. Cook, deceased.
    
      Edward M. Shepherd, for app’lt; Charles A. Hawley, for resp’ts.
    
      
       Affirming 15 N. Y. State Rep., 675.
    
   Gray, J.

—The testatrix, after making a devise of certain real estate and certain bequests, by the tenth clause of her will, disposed of all of the rest, residue and remainder of her estate, by giving one-eighth part thereof to each of five persons named, and one-eighth part to the children of each of three other persons. After stating the legatee or legatees of each eighth part, testatrix added these words: “ To have- and to hold the same to them, their heirs and assigns forever.Four of the persons named as legatees died after the making of the will and before the testatrix, and this-controversy arose as to whether the legacies to them lapsed and, as to such parts, the testatrix has died intestate.

The appellants, who are the heirs and representatives of the deceased legatees, argue that there was no lapse, and they found their argument upon the habendum clause, just quoted from the will, and also upon what they deem to be. evidences of a contrary intention of the testatrix. _ That evidence they glean entirely through a consideration of certain extrinsic circumstances. The estate of the testatrix had come entirely from her deceased husband, with .whom she had lived some forty-five years. She died at an. advanced age, leaving neither parent nor descendant, and the persons, whom she selected as her residuary legatees were all the next of kin of her deceased husband, being his brothers and sisters, and the children of two brothers and of a sister, deceased. Those facts are relied upon by the appellants, when considered together, as constituting some evidence of an intention of the testatrix to treat the bulk of her estate as a moral trust from her husband and to return it to his relatives. They then argue that reading in that light the words, “to have and to hold to them, their heirs and assigns forever,” a force and significance are imparted to them which, generally, they would not possess. They say that they must be taken to have been meant by the testatrix to be operative as substitutional words, whereby the heirs of any person entitled will upon his death stand in his place. We cannot, however, concede to these words the meaning ■contended for. The established principles of construction in such cases forbid it.

In the absence of express words to prevent a lapse, or of something in the context to indicate a contrary intention, we should give to the words in this habendum clause their usual and primary meaning, in accordance with a general rule in the construction of wills. At common law a legacy, or a devise, lapsed and became void, where a lagatee, or devisee failed to survive the testator. The reason of the rule was that a will in its nature is ambulatory and does not become operative until the death of the testator and until that event the legacy has never vested. 1 Jarman, 338; 2 Williams on Executors, 1084.

In Corbyn v. French (4 Vesey 418, 435), the master of the rolls (Lord Alvauley), said: “a testator is never to be supposed to mean to give to any but those who shall survive him, unless the intention is perfectly clear.” Such an intention cannot be said to be made clear by the addition of the word heirs ” for that is a word of limitation; used to describe the nature and duration of the estate given, and, as Mr. Jarman observes, in his valuable work (vol. I, chap. XI), the doctrine of lapse “ applies indiscriminately to gifts with and without words of limitation.”

This rule of the common law, with respect to the lapsing of a legacy, or devise, was not abrogated, but it was modified by the Revised Statutes of Yew York to this extent that where the devise, or bequest, is to a child, or descendant of the testator, who dies in his life-time, leaving a descendant, who survives the testator, the estate or interest given vests in the descendant of the legatee or devisee. 2 R. S., 66, § 52; Downing v. Marshall, 23 N. Y., 366. It is apparent that the statute assumes that, but for its provisions, the devises or legacies, in the case of the predecease of the devisee or legatee, would have lapsed. Words of inheritance are now unnecessary to., convey a fee and are mere surplusage; whether when used in wills, or in deeds.

That fact, however, is not a sufficient reason for us to import into their use the expression of an intention that they shall be taken as words substituting in the place of the predeceased legatees, or devisee, his heirs. When words like these have a well settled and a well understood meaning, we should not invest them with a different one; unless we are forced to do so by a conviction, based on some-stronger support than that which is afforded by suggestion ' or speculation, however plausible.

Some evidence of extrinsic circumstances was admitted and I have referred to the evidence above; but that is as inconclusive, as it seems to be improperly in the case. If there was room for the belief that there was some obscurity in the language; if the meaning of the words used was ambiguous or obscure and, from the facts proved, an ambiguity in fact was disclosed, evidence of circumstances, or of declarations, would find a proper place in the case to remove the obscurity, or to give an effect to the ambiguous expressions. Hiscocks v. Hiscocks, 5 M. & W. 363. Lord Abinger, in the case cited, said that to ascertain the intention of the testator, we should “read his will as1 he has written it and collect his intention from his words.” Mr. Wigram in his work on Wills says that the legitimate purposes, to which evidence of material facts is applicable are, ‘ ‘first, to determine whether the words of a will, with reference to the facts, admit of being construed in their primary sense and, secondly, if the facts of the case exclude the-' primary meaning of the words, to determine whether the-intention of the testator is certain in any other sense, of' which the words, with reference to the facts, are capable.”' O’Hara’s ed. (2d Am. ed.), 285. The rule is undoubted that evidence is admissible in aid of the exposition of a will, in all cases, where a difficulty arises in applying the words of' a will to the subject matter of a devise, caused by ambiguity or obscurity. In the will before us I can perceive no obscurity in its language, no doubtful meaning of the words-used and the admission of the extrinsic evidence does not- ' introduce any difficulty, or ambiguity in the case, or prevent us from applying the words of the habendum clause in their-ordinary and primary sense.

There is no real reason arising from anything in the-structure of this will, why we should suppose that the testatrix meant anything more than what she has said. We-must take the whole structure of the will together, and not dismember it, to discover what it accomplishes and what it was meant to accomplish. We may assume, indeed,. that the testatrix was aware of the effect of the predecease of a legatee; for we find, in the third clause of her will, in the case of a gift to her nephew, Nathan Crary, a provision that “ in case he shall die before the receipt of said legacy, then the same shall go and be paid to his children, etc.” Evidence of a similar understanding of the effect of the death of a legatee, is suggested by the reading of the language of the third clause of the codicil.

How can it be fairly argued, then, that a reason exists that the words in question, which possess a certain meaning, should be read in another than their ordinary sense ? Is it because the testatrix ought morally, and, therefore, must be held to have intended, to convey the bulk of her estate to the relatives of her deceased husband ? That is a. sentimental reason, and it may explain as much as she did.. But it cannot warrant our importing into her will another intention, which not only lacks support in expression, but may not in fact have been her intention, when we consider the fact that in other cases of gifts, she has contemplated the effect of a possible predecease of the devisee, and has provided against its occurrence so as to perpetuate them in the descendants of the donee. The words of this clause-are most inapt to signify substitution. To give to them such a sense, we should have to disregard and cut out such words as “to have and to hold ” and “ assigns” and interpolate others. They are meaningless, if the clause is to be regarded as substitutional. No gift can vest in the donee until the death of testatrix. What, then, is the sense of “to have and to hold” or of “assigns?” There are cases where words accompanying a gift to a person of a legacy, or devise, are deemed disjunctive and, therefore, substitutional; or they may be explanatory, and with the-aid of the context plainly indicate that the gift shall not become void by the death of the first taker named in the-will before the testator. Gittings v. McDermott, 2 M. &. K., 69; Hawn v. Banks, 4 Edw. Ch., 664. Whenever a testamentary intention is clear and unequivocal, the courts go far to give it effect. They will convert “and” into- “or” and construe words of limitation as words of purchase, or words of purchase as words of limitation. Taggart v. Murray, 53 N. Y., 233.

Such was the case in Matter of the Estate of Brown (93 N. Y., 295), where the court sustained a construction, by which the issue of a deceased son might be admitted to participation in a remainder limited to him upon his mother’s death. But there was justification for such a. construction, in the language used by the testator. It was “upon the death of any ór either of my said daughters, I give * * * unto such child or children as my said daughter shall have, or leave living at her decease, that is to say the children of my said daughters to have the part or share whereof the mother received the rent and income during her life.” It was thought that the insertion of the words “ have or ” with respect to the leaving of children, and that the addition of the latter portion of the clause I have quoted, when taken in connection with the principal sentence, disclosed the testator’s purpose, so as to let in the issue of children dying before their mother, testator’s child.

The decision in Van Beuren v. Dash (30 N. Y., 393), is a precise authority upon the question raised in the present case and we see no substantial distinction between the two ■ cases. There the insertion of the words "“ and their heirs ” in a devise, was held to show the extent of the interest devised, and Denio, J., answered the argument that the devise was one in favor of the heirs of the devisees, by reference to the case of Brett v. Rigden (Plowden, 345), .and to its being the accepted authority in England. He also said, “it does not follow that because such words may now be dispensed with that where they are inserted, their legal effect is different from what it would have been before the statute.”

In Thurber v. Chambers (66 N. Y., 47), it was said of the presence of similar words in a will, that “although the use of them was unnecessary to vest a fee, it is quite common and the usual way in deeds and conveyances to insert them for greater certainty.” In Hand v. Marcy (28 N. J. Eq., 59), Chancellor Runyon, in a well considered opinion, held that the addition of the words “their heirs and assigns” to a gift of the residue did not prevent a lapse, where a residuary legatee died in the lifetime of the testator, and that as to so much of the estate disposed of by the residuary clause the testator had died intestate.

Sword v. Adams (3 Yeates, 34), Sloan v. Hanse (2 Rawle, 28) are also decisions in point. Other authorities might be cited to show the universality of the rule as to lapse in similar cases; but it does not seem necessary. I think the appeal must fail. To sustain it we should have to make a new will, when we have no sure guide and no direction; no other reason than the ingenious suggestion of a possible motive, or rather of one, which, the counsel says, the testatrix ought to have entertained. Fairly considered, these words, which have suggested to the appellants their ground for contention, were but a common, or an intensified form of expression of an absolute gift. It was an expression ■consistent with the gift of an absolute ownership, but in mo wise indicative of a direction to transfer the part given to a legatee to his heirs or personal representatives, in the event of his failing to survive the testatrix.

The judgment of the general term should be affirmed, with costs to the respondents to be paid out of the estate. All concur.  