
    WILLIAMS et al. v. PETIT et al.
    (Supreme Court, Appellate Division, Fourth Department.
    May 4, 1910.)
    1. Wills (§ 449)—Construction—Construction Against Intestacy.
    A construction of a will which leaves a partial intestacy is not favored; it being presumed that testator intends to dispose of all of his property.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 965; Dec. Dig. § 449.]
    2. Wills (§ 449)—Construction—Estate Conveyed.
    A devise to certain of testator’s next of kin gave “to each, the undivided one-eighth of all my real estate and personal property wherever the same may be, except as hereafter mentioned; to W. * * * and B. * * * the undivided two-eighths of all my real estate and personalty wherever the same may be except as hereinafter mentioned.” The will provided for all of the next of kin and heirs. If only an undivided two-eighths was given to W. and B. jointly, two-eighths of the residuum would be undisposed of. Held, adopting a construction against intestacy, that testator intended to dispose of all his property and to give W. and B. each an undivided two-eighths of the residue of his property not otherwise disposed of.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 965; Dec. Dig. § 449.]
    3. Wills (§ 587)—Construction—Construction of Residuary Clause.
    Unless a residuary clause clearly limits its operation to the contrary, it will be construed to dispose of all of testator’s estate remaining undisposed of or which may be added by lapses, or otherwise; an ambiguous residuary clause being construed broadly rather than narrowly.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 1281; Dec. Dig. § 587.]
    4. Wills (§§ 460, 462, 463)—Construction—Intent of Testator.
    To prevent an apparent intent of testator from, being defeated by inapt use of language, the court may reject or supply words and limitations, or transpose words.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 979, 981, 982; Dec. Dig. §§ 460, 462, 463.]
    Appeal from Supreme Court, Special Term, Erie County.
    Action by Harry R. Williams and another against John A. Petit and another, as executors of Gayer Gardner, deceased, and others. From a judgment dismissing the complaint, plaintiffs appeal.
    Reversed, and new trial granted.
    Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
    Adolph Rebadow, for appellants.
    Thomas R. Stone, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   KRUSE, J.

The action is for the construction of the second "clause of the last will and testament of Gayer Gardner,'deceased, who lived in the town of East Hamburg, Erie county, in this state. The question presented is whether he gave to his nephew Harry R. Williams and his niece Lillie M. Beckwith each an undivided two-eighths of his property not otherwise specifically disposed of, or only an undivided two-eighths to them jointly. The clause, so far as material to the questions under consideration, reads as follows:

“Second. I give, devise and bequeath, to Rebecca J. Gardner, my sister, Alice M. Hopkins, niece, F. Gardner Behrends and George T. Jones, nephews, all ■of the City of Buffalo, Erie County, New York, to each, the undivided one-eighth of all my real estate and personal property wherever the same may be except as hereinafter mentioned; to Harry R. Williams, of the City of Buffalo, Erie County, New York, my nephew, and Lillie M. Beckwith, my niece, of the City of Brooklyn, New" York, the undivided two-eighths of all my real estate and personal property wherever the same may be except as hereinafter mentioned, to wit: * * * ”

All of the next of kin and heirs at law of the testator are named and provided for in the will. •

If only an undivided two-eighths is given to the nephew Harry R. Williams and the niece Lillie M. Beckwith, there remains undisposed of an undivided two-eighths of the residuum of the estate, which the heirs and next of kin of the testator will take under the intestate laws, in addition to what is willed to them. While, of course, the testator could- dispose of only a part of his estate by will, leaving the remainder to pass to the persons entitled thereto under the intestate laws of the state, the rule is well settled that such a construction of a will is not favored. Generally, where a person makes a will, he intends to dispose of his entire property, and the law so presumes. Vernon v. Vernon et al., 53 N. Y. 351; Schult v. Moll, 132 N. Y. 122, 127, 30 N. E. 377; Meeks v. Meeks, 161 N. Y. 66, 55 N. E. 378.

I think the testator intended to dispose of all his property by his will ; that he intended to give to his sister and to his niece and two nephews first therein named each an undivided one-eighth, and to his nephew Harry R. Williams and his niece Lillie M. Beckwith, lastly therein named, each an undivided two-eighths of the residue of his entire property, not otherwise disposed of by his will. While the words “to each” immediately following the names of the persons to whom an undivided one-eighth is given are not actually repeated after the names of the nephew and niece last named, I think that is a fair interpretation of the provision. Such a construction is not ungrammatical, and does no violence to legal rules for construing wills, but is quite in harmony therewith. As is said in Matter of Miner, 146 N. Y. 121, 131, 40 N. E. 788, 790:

“Unless a residuary bequest is circumscribed by clear expressions and the title o£ a residuary legatee is narrowed by words of unmistakable import, it will be construed to perform the office that it was intended for, viz., the disposition of all of the testator’s estate, which remains after effectuating the previous provisions in the will, or which may be added to by lapses', invalid dispositions, or other/accident. Riker v. Cornwell, 113 N. Y. 115 [20 N. E. 602]. The rule of construction requires of the court in dealing with the language of a residuary gift which is ambiguous that it should lean in favor oí a broad rather than of a restricted construction; for thereby ‘intestacy is prevented, which, it is reasonable to suppose, testators do not contemplate.’ Lamb v. Lamb, 131 N. Y. 227 [30 N. E. 133]. In performing the office of construction, and in order that an apparent intention of the testator shall not be rendered abortive by his inapt use of language, the court may reject words and limitations, supply them, or transpose them, to get at the correct meaning. Phillips v. Davies, 92 N. Y. 199.”

Applying this rule, it seems reasonably clear that the testator disposed of all of his property, and that he gave to the nephew and niece last named in the second provision an undivided two-eighths each of the residue of his property, not otherwise disposed of by said will.

The judgment dismissing the complaint should, therefore, be reversed, and, as it seems to me, judgment directed construing the will as above stated. A majority of the court, however, are of the opinion that a new trial should be granted.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event, payable out of the estate. All concur.  