
    John S. Hulin, Resp’t, v. Norman B. Squires Ex’r, et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 15, 1892.)
    
    Will—Lapsed legacy—Residuary clause—Construction.
    By the fifth clause of his will, testator gave to a religious corporation $20,000 and certain real estate, and the will having been executed within, two months prior to his decease, it was conceded that the clause was void. By the tenth clause the testator gave ‘ ‘ all the rest and residue of my estate remaining after the payment of all the legacies, devises and bequests hereinafter specified or contained, to F.” Sield, that the tenth was a general residuary clause, and carried to F. all the estate of the deceased, including that part of his estate attempted to be given in the fifth clause.
    Appeal from an interlocutory judgment of the Rensselaer ¡special term, holding the fifth clause in the will invalid, adjudging that the testator died intestate as to such portion of his estate, and directing a sale of the real estate and distribution among the heirs at law and next of kin.
    
      King & King (Edwin A. King, of counsel), for executors, app’lts; Smith & Parmenter (R. A. Parmenter, of counsel), for Farnam Philip Caird, app’lt; J. Arthur Barrett (K Countryman, of counsel), for resp’t.
   Putnam, J.

The controversy in this case arises out of the construction of the will of Franklin W. Farnam, deceased. By the eighth clause the testator gives to a religious corporation in the city of Troy $20,000 and certain real estate, and the will having been executed within two months prior to his decease, it is conceded that this clause is void under chapter 319 of the Laws of 1888. The matter to be determined is the interpretation to be given of the tenth clause of the will, which is as follows:

Tenth. All the rest and residue of my estate remaining after the payment of all the legacies, devises and bequests hereinbefore specified or contained, I give, devise and bequeath to Farnam Philip Caird. In case he shall not be living at the time of my decease, then, and in such case, I give, devise and bequeath the same to his mother, Carrie L. B. Caird.”

The question submitted is, does the property attempted to be bequeathed and devised in the fifth clause of the will pass to the residuary legatee and devisee under said tenth clause, or, as held by the trial court, go to the heirs and next of kin?

The counsel for respondent insists, and I understand the trial court to have, in substance, held that the tenth clause was not a general residuary, but a specific residuary clause, so to call it.

The principles applicable to general residuary bequests are well settled. In Riker v. Cornwell, 113 N. Y., 115; 22 St. Rep., 151, the court lays down this doctrine: “The 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 which were originally void, either because the disposition was illegal or because, for any other reason, 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.”

In the Matter of Bonnet, 113 N. Y., 524; 23 St. Rep., 268, it is said: “We hold tho/t, unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be carried by a general gift of the residuum of the testator’s estate.”

In the Matter of Benson, 96 N. Y., 510, the court quotes with approval the remark in Banks v. Phelan, 4 Barb., 80, that the only exception to the general rule is where the “ words used in the will expressly show an intention on.the part of the testator to exclude such portions of his estate as are mentioned in any of the previous clauses of the will from falling into the general residue.” See, also, Floyd v. Carow, 88 N. Y., 568; Rogers v. Case, 18 W. Dig., 470; King v. Strong, 9 Paige, 94; 2 Redfield’s Law of Wills, 115, note.

In the tenth clause the testator gives and bequeaths all the rest and residue of his estate remaining after the payment of all the-legacies, devises and bequests hereinbefore specified or contained,, to Farnam Philip Caird. The language is that of a general residuary clause. The sentence therein, “ after the payment of all' the legacies, devises and bequests hereinbefore specified or contained,” does not prevent it from so being considered.

In Riker v. Cornwell, supra, it was insisted that the words in the second clause of the second codicil, “ after payment of all the legacies and carrying out of the trusts and provisions -made,” wore words of exclusion, and which indicated an intention to give only a specific legacy. The court held, there was no force in the suggestion.

In Banks v. Phelan, 4 Barb., 91, the court remarked; “It was contended upon the argument that the words 1 if any there shall be after paying the preceeding legacies, devises and bequests’ contained in the parenthesis of the residuary clause, bring this case-within the exception to general rule. A reference to the adjudged cases will show that similar words used in the residuary clause have not been considered sufficient to limit a residuary disposition to any particular or partial residue.”

In King v. Woodhull, 3 Edw. Chan., 84, the vice-chancellor remarked : “1 after payment of debts and legacies,'1 or, ‘after payment of legacies specified or recapitulated in the residuary clause itself,1' are not restrictive of the bequest to any particular or partial residue; but the bequest after all is general of the remainder, and may be so understood without doing violence to the expressions of the will. Where the residuary clause is thus worded, the legatee is as much a general legatee of the residuum of the estate as if such words were not used. In some of the cases, where the court has decreed the residuary legatees entitled to the benefit resulting to the estate from lapsed or void bequests, the language of the will has been stronger in favor of a construction which would exclude them than in the present case. I will instance only two. Shanley v. Baker, 4 Vesey, 732 and Roberts v. Cooke, 16 id., 451.”

The case of King v. Woodhull was affirmed in 9 Paige, 94, is cited with approval in Riker v. Cornwell, 113 N. Y., 127; 22 St. Rep., 151, and in many other cases, and may be deemed a reliable-authority.

The learned judge at special term in his opinion says: “ When we reach the tenth clause the testator does not give ‘ all the rest and residue of my estate1 to Farnam Philip Caird, but he qualifies, and circumscribes the residue by clear expression of unmistakable import, namely, ‘ remaining after the payment of all the-legacies, devises and bequests hereinbefore specified or contained.1 Clearly whatever residue it is, is the residue remaining after the: payment of all the legacies, not of those effectually given, but. specified or contained in the will, whether valid or not. Otherwise why add the words of definition, description or limitation ?' If these words are to be stricken out the purpose of the testator in. adding them is to be thwarted.”

I cannot answer this position of the court below better than by quoting an extract from the opinion of Judge Gray in the Biker case: “ The words upon which the appellants lay so much stress as being words of exclusion and limitation are used by the testator rather as words of a description of the general residue. They might have been omitted without 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 codicil ’ is the fund, which is only completely ascertained.when the previous provisions have been effectuated. The very sense of the words implies the negation of the idea of a specific or fixed residue outside of the previous gifts in the will. If the 1 carrying out ’ of the provisions of the will and codicils is defeated to any extent, to that extent the residue of the fund is increased by the accretion of the void or lapsed gifts.”-' See page 126.

I think, then, that the above quotations show that the said tenth subdivision of the will, being in form a general residuary clause, is not prevented from being deemed such by the words “ after the payment of all the legacies, devises and bequests hereinbefore specified or contained.” Is it affected as a general bequest because in the fifth, sixth, seventh- and eighth clauses of his will the testator has bequeathed certain legacies to be paid out of the “ residue ” of his estate ?

In King v. Woodhall, supra, see page 80, the testatrix willed the residue of the proceeds of her estate, if it did not exceed $1,000, to a missionary society, and the residue and remainder of her estate, after the payment of said $1,000 to said missionary society, if any there shall be, she bequeathed to the children of her niece. The legacy to the missionary society lapsed, and it was held that a residuary legatee took the money. That case, then, is an instance of a general residuary bequest, after a specific bequest out of the residue, held valid.

It is undoubtedly the rule that a bequest of a residue will not ordinarily carry a lapsed legacy. Kerr v. Dougherty, 79 N. Y., 316; Beekman v. Bonsor, 23 id., 298-312; Riker v. Cornwell, 113 id., 125-126; 22 St. Rep., 151; King v. Woodhull, 3 Ed. Chan., 82.

■ In the case last cited it was held “ to entitle a residuary legatee to the benefit of a lapsed or void bequest, however, he must be a legatee of the residue generally, and not partially so, for where it is manifest from the express words of the will that a gift of the residue is confined to the residue of a particular fund or description of property, or to some certain residuum, he would be restricted to what is thus particularly given, since the legatee cannot take more than is fairly within the scope of the gift.”

In Kerr v. Dougherty, supra, there was in fact no general residuary clause. The case is considered and explained fully in the Matter of the Accounting of Benson, 96 N. Y., 499, and in the Hiker case, supra, at page 127. And in the latter case, at pages 125, 126, is illustrated the difference between a general bequest .and a bequest of a particular residue. The distinction between .n devise of a particular residue, as so illustrated in that case, and that of a general bequest by the testator of all the residue of his estate, as in this case, must be apparent. The legacies contained in the fifth, sixth, seventh and eighth clauses of the will in question are specific legacies of a certain sum, payable in the order named, in case testator left sufficient property. There is no residue disposed of in these clauses. These are not specific residuary legacies. The testator wills a certain sum of money to each legatee in the order named, payable from the balance of his estate. The ■ effect in meaning of the will would have been the same had he used the word balance ” instead of “ residue. 1’

The effect of the will in question is by the first four clauses to 'bequeath certain legacies to the parties named. Then out of the balance of his estate to pay the specific legacies as specified in the fifth, sixth, seventh and eighth clauses, in the order named, and the residue of all his estate he bequeathed to Earn am Philip Caird. The gifth in the tenth clause is not of any particular part of the estate of testator, or any partial fund. It is a gift by its terms of the whole residue ' of the estate. In the language of King v. Woodhull, supra, Caird is “a legatee of the residue generally.”

Plaintiff claims that by the will in question, after the first four ■clauses, there are successive residuary legacies, beginning with the words: “ I give and bequeath out of and from the residue of my estate, after the payment of the legacies, etc.,” thereinbefore •specified and ending with the tenth clause in which the same language is used, and he infers that the will evinces a plain intent of the testator that the residuary legatees in each case, including said tenth clause, shall, only take the residuum after paying prior legacies, and hence that the tenth clause is a specific residuary clause and not a general one.

The answer to this proposition is (what has been before stated), that neither the fifth, sixth, seventh or eighth clauses of the will ■contain residuary bequests. Each of said clauses will or bequeath specific legacies of money or property. The word “residue” is used, but the testator might as well have used “ balance.” He wills in each case a sum of money, if after paying the former leg.acies his eslate is sufficient. " Neither the fifth, sixth, seventh or •eighth clause wills a residue. A “residue” is a “remainder,” “what is left,” “the rest.” These clauses will a specific sum of money in each case payable from the balance of the estate of the testator and not a residue. Then comes the tenth clause in question, in which the testator wills not any specific sum of money or property, but all his estate to the residuary legatee. He does not :so bequeath the residue after paying the legacies specified in the fifth, sixth, seventh and eighth clauses, but the residue after pay- mg all the legacies,including the first four. Suppose the first three legacies in the will had lapsed, can there be any reasonable doubt but what the language of the tenth clause is sufficient under the authorities above quoted to carry such lapsed legacies to Farnam Philip Caird ? If the bequest contained in the tenth clause was in anyway limited in its language so as to evince any intent on the' part, of the testator not to dispose of all- of his estate, we might come to a different conclusion but the language is general except the words “ after the payment of all legacies,” etc. And these words-as we have seen are words of description and not' words of limitation or exclusion.

There are cases where a gift of the rest and residue does not-carry a lapsed legacy, as, for instance, where a testator having disposed of ail his estate but certain specific property described in his-will, bequeaths such residue to two persons in certain proportions. If the legacy to one lapses the other will not take, although to-him was bequeathed the rest;and residue of such residuum. Such was the instance’ referred to in Riker v. Cornwell, supra (page-126). Such a legacy is in fact specific and residuary, and the intent of the testator appears clearly not to give all the residuum to the survivor, but only a specific part of the same.

Another case is where the whole residue of the estate is given to several persons, one of whom dies before the testator. In that case the others do not, under the will,'take the share of the one so-dying. Such are the cases of Matter of the Accounting of Benson, 96 N. Y., 502-503; Mount v. Mount, 3 N. Y. Sup., 190; Beekman v. Bonsor, 23 N. Y., 299. In such a case the testator by the very terms of the will only gives to the survivor-a certain share of the-residue and he cannot take more than the will gives him. The-object in all these cases is to ascertain the intent of the testator as-indicated by the language°of the will. And in such a case the-language of the testator is plain. In the case we are considering-the devise is general of “ all the rest and residue,” and bearing in mind the doctrine laid down by the highest appellate court in this-state in many eases, that unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be-carried by such a general gift of the residue, I think the bequest, contained in the tenth clause carries to Farnam Philip Caird all the estate of the deceased not validly disposed of by the will, including that part of his estate attempted to be given and bequeathed in the fifth clause.

It follows there should be a reversal of the judgment The-will should be construed in accordance with this opinion and the complaint should be dismissed.

Mayham, P. J., and Herrick, J., concur.  