
    Hogle v. Hogle et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    July 2, 1888.)
    1. Powers—Testamentary—Intention to Exercise.
    A husband gave two-thirds of his property in trust for his wife during life, with power in her to dispose of the same by will. By her will, after some small legacies, she gave her household furniture to W. for the use of her grandchildren; “ also the use of all the residue of my property, of every description, for the maintenance of said children during minority; the residue to he equally divided among ” them when the youngest should become 21 years old. She had substantially no property except the furniture. Held that, as there was no other property on which the general devise could operate, testatrix intended to exercise the power of appointment given by the will of her husband.
    2. Writs—Process—Service on Minor.
    Under Code Civil Proc. N. Y. §§ 436, 2526, providing for service on a minor undei 14 by giving a copy of the summons to him in person, and one to his father, mother, or guardian, a service of a citation for the probate of a will on such a minor by giving a copy to his mother is invalid, and is not cured by the appointment of a guardian ad litem.
    
    3. Wills—Construction—Declarations of Testatrix.
    Declarations of a testatrix that she intended to execute a power of appointment are inadmissible to aid in the construction of her will.
    This was an action to construe a will. Code Civil Proc. §§ 426, 2526, provide that service on a minor under 14 years shall be made by leaving a copy of the summons with him, and one with his father, mother, or guardian.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      
      E. R. Harder, for appellant. W. S. Hevenor, for respondent.
   Learned, P. J.

In the case of Charter v. Charter, L. R. 7 H. L. 364, affirming L. R. 2 Prob. & Div. 315, the question of extrinsic evidence in regard to wills was fully discussed. 1 Moak. Eng. R. 249; 12 Moak. Eng. R. 1. It was held that evidence of the state, circumstances, and habits of the family was admissible to aid in the construction of a will; that the only case in which evidence of the declarations of the testator could fee received is where the description of the legatee, or of the thing bequeathed, is equally applicable, in all its parts, to two persons or to two things. We have cited this English case because it was very carefully considered; and, while the opinions given in the house of lords did not agree in everything, they did agree as to the point above stated about declarations of the testator. If a testator gave a legacy to “my nephew John Smith,” and had two nephews of that name, or if a testator gave to a legatee “my black horse Tom,” and had two black horses by that name, in each of those instances, according to that decision, declarations of the testator would be admissible. But only in such and similar cases. But in the present case declarations of the testatrix were admitted to show that she intended to execute a power of appointment. Such declarations were inadmissible. They do not come within the exception stated in that case, even assuming that such exception is the rule in this state. The same doctrine is distinctly stated in White v. Hicks, 33 N. Y. 387. See, also, Williams v. Freeman, 83 N. Y. 562. This error must make a new trial nee-' essary, unless it shall appear that it could not have affected the result.

The will of Peter R. Hogle gave two-thirds of his property in trust for his wife during life, with power to the wife to dispose of the same as she might choose by will. Mary A. Hogle, the wife, survived, and made her will. By this, after some small legacies, she gave some household furniture to Harriet A. Wolver “for the use of my grandchildren, Nettie R. Hogle, Wilmot Ernest Hogle, and Bernice Hawlthon Hogle; also the use of all the residue of my property, of every description, for the maintenance of said children during their minority; the residue to be equally divided among said children when Bernice II. Hogle shall arrive at the age of twenty-one years.” It should be noticed, also, that by the will of Peter R. Hogle one-third of his estate was given to his grandchild Herbert M. Hogle, if he should reach 21; if not, to his children. Nettie, Wilmot, Bernice, and Florence Y. were children of Jacob ■H. There is no evidence that, aside from household furniture, Mary A. Hogle had any considerable property. She had claimed a life policy on her son Jacob H., but the claim was decided against her. These seem to be substantially all the circumstances tending to aid in the construction of Mary A. Hogle’s will. In the case of Van Wert v. Benedict, 1 Brad. Surr. 114, it was held that wills devising and bequeathing all the real and personal property of the testator operate on lands and personalty embraced in a testamentary power, although the power be not recited or referred to. The surrogate relied, to some extent, on 1 Rev. St. 737, §§ 124, 126, which applies this rule to land. This doctrine is laid down in 1 Redf. Wills, c. 6, § 32. The English statute (1 Yict. c. 26, § 27) has enacted this rule of law. Chancellor Kent says, in his text, that, if a will be executed without reference to a power, it operates as an appointment, provided it cannot have operation without the power. 4 Kent, Comm. 335. But in a note to later editions it is stated that it is the tendency of some American decisions to adopt the later English doctrine, without the statute. If we turn to section 126 of the Revised Statutes, above cited, we shall see that, if the property in question had been real estate, it would have passed by the will of Mary A. Hogle. In Bolton v. De Peyster, 25 Barb. 539, 562, the court said this rule should apply, also, to personal estate. In White v. Hicks, 33 N. Y. 383, the court followed the same rule, influenced, however, partly by considering the amount of the property owned by the testatrix, and also the nature of the trust. In Mott v. Ackerman, 92 N. Y. 539, the matter in litigation was real estate, but the trust embraced personal estate; and the court, applying the statutory rule, made no distinction. In Warner v. Insurance Co., 109 U. S. 357, 3 Sup. Ct. Rep. 221, the court adopt this rule, and refer to several cases, among them to Sewall v. Wilmer, 132 Mass. 131. That last-named case is interesting, because the testatrix executed her will in Maryland, and by the laws of that state it was admitted that the will would not have been a sufficient execution of the power; but the court held that in Massachusetts a general devise and bequest of all property, real and personal, of which the testator should die seized or possessed, was (or at least might be) a good execution of a power, notwithstanding the testator had property of his own on which the will might operate. See, also, Funk v. Eggleston, 92 Ill. 515. Of course, it is a question of the intention of the testator. But the tendency is evidently to hold that a general bequest, without reference to the power, is a strong indication of the intent to execute the power, unless the contrary be shown. We see, then, that Herbert M., a grandson of Peter R., had had one-third of his grandfather’s estate. If Mary A. made no appointment, Herbert M. was to have another third, and the children of Jacob H. the remaining third. Mary A. had the income for the two-thirds for her life, and was to support the children of Jacob H. It is said (though it does not very clearly appear) that she had $100, which by her will she gave to her sister. She disposed of her household furniture. She had no other property, it must be, then, that she intended to execute the power given by the will of Peter R. There was nothing else on which the general devise and bequest could operate. Herbert M. had received about $1,390. The two-thirds were about $2,700. She gave one-third of this to each of these children of Jacob H. We think, therefore, that her will executed the power.

Another question arises on a point of evidence. The will of Mary A. was offered in evidence, with the certificate of probate attached. Objection was made, on the part of Herbert M., that he had not been served with a citation. Subsequently the defendant Herbert M. introduced in evidence the proof of citation, which shows that it was served by leaving a copy with Lillie Harder, the mother of said Herbert, then a minor under 14. The decree of the surrogate and the proceedings show a consent of E. R. Harder to become special guardian of the infant, and the order appointing him such special guardian. Sections 426 and 2526 show how the citation should have been served. It was proved not to have been legally served on the infant, and, of course, the appointment of a guardian ad litem did not cure the failure to serve. Pinckney v. Smith, 26 Hun, 524. Proof of the due execution of the will might have been given on this trial, but this was not done. The defendant Herbert M. had a right to insist on this trial that he was not concluded by the probate, to attend which he had never been legally cited. For this reason there must be a new trial.

We are unable to see the necessity for this action. We do not understand • why the surrogate could not have decreed distribution, and why he ought not to have done so, without causing the expense and delay of an action. It is now a year and a half since he stayed the proceedings in his court; and an expense of over $400 costs had been incurred up to the time of the judgment. This expense would have been saved to the estate if the surrogate had proceeded with the distribution. No appeal was taken from his refusal to proceed. In this view of the case, we grant no costs of appeal to either side. Judgment reversed; new trial granted, without costs to either party. Referee discharged.

Landon and Ingalls, JJ., concurring.  