Leggett v. . Stevens

Werner, J. The first cpiestion urged upon our attention by the learned counsel for the appellant is that ■ the referee erred in denying his motion to dismiss the complaint at the opening of the trial, and also his request for a nonsuit. The motion to dismiss was made upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and the request for a nonsuit involved practically the same question. We think the action was properly brought by the plaintiff as executor of the widow, and that the complaint states, a 'cause of action. The referee has found, upon ample evidence, that the widow took the fund in question individually and not as administratrix of her husband’s estate. She was thus constituted a trustee for the remaindermen. When the administrators of the testator turned over to the widow, for use during her life, the securities and cash representing the legacies of $12,000, they parted with title and possession thereof, and were discharged from all liability and divested of all power concerning them. (Smith v. Van Ostrand, 64 N. Y. 278; Matter of McDougall, 141. id. 21; Matter of Ungrich, 48 App. Div. 594; affirmed, 166 N. Y. 618.) Upon the death of the widow the plaintiff as her executor took possession of the balance of the fund then remaining in her hands, and thus acquired the right to bring this action for an accounting and to obtain the direction of the court as to *77 the proper disposition of the fund. (Holland Trust Co. v. Sutherland, 177 N. Y. 327.) The next question to he considered relates to the construction of the third clause of the testator’s will. By that clause the testator gives to his widow $10,000 for her comfort and support, and provides that what is left at her death, after all her' debts and funeral expenses have been paid, “shall be equally divided between my adopted daughter, Helen S. Eldridge, * * * if she is living, if she has children to go to them, if not to go to my nearest a kin on my side.” The learned referee reached the conclusion that the testator intended that if Helen S. Eldridge should not be living the balance remaining of this sum should be equally divided between her children, and as she was then living the whole of the fund should go to her. He arrived at this result by transposing the words “ shall be equally divided between ” so as to make them applicable to the children. While it is impossible to assert with dogmatic certainty what the testator’s intention really was, we do not believe the language employed warrants the interpretation given to it by the referee. Courts may, it is true, transpose words and phrases, and read the provisions of a will “in an order different from that in which they appear in the instrument, insert or leave out provisions if necessary, but only in aid of the testator’s intent and purpose ; never to devise a new scheme or make a new will.” (Tilden v. Green, 130 N. Y. 29, 51, 52; Trash v. Sturges, 170 N. Y. 482; Brown v. Quintard, 177 N. Y. 75, 84.) The difficulty with the learned referee’s transposition is that it constructs rather than construes, and that is not permitted. That portion of the third clause now under consideration discloses a clear intent to give to the testator’s adopted daughter a part of the remainder of the fund which had previously been given to the widow for her use, but beyond that it is so equivocal and uncertain that it cannot be made effective without resorting to other parts of the will in aid of its construction. When we look to other parts of the will, however, and obtain a view of the testator’s general testamentary scheme, *78 we think it becomes apparent that he intended to divide equally between his adopted daughter and his son the remainder of the fund of which his widow had the life use. The will discloses that there were three persons for whom the testator would naturally wish to provide. These were his widow, his adopted daughter, Helen S. Eldridge, and his son, the appellant, Addison S. Stevens. In the first clause of the will he provided for the widow by giving her his house and lot and household furniture; in the third clause he gave her the use' of $10,000, and in the fifth he gave her the use of $2,000 more. In the fourth clause he gave to his adopted daughter $4,000; in the fifth he gave her $2,000 more. It is apparent that he intended she should share in the remainder of the $10,000 at the death of the widow as provided by the third clause. The only expressed provision for the son was as residuary legatee. The expression “ to be equally divided between my adopted daughter ” in the third clause of his will, without naming any other person or persons, seems to indicate the testator’s intention to divide the remainder of the $10,000 at the death of the widow between his adopted daughter and his only son in equal shares. The son was the only other person for whom his bounty seems to have been intended and that construction best accords with the testamentary scheme as disclosed by the will. But we have no power to completely effectuate that intention. The bequest was effectual to vest in the adopted daughter one-lialf of the balance remaining of the $10,000, and to that extent it can be sustained. The testator’s failure to name his son as the recipient of the other half was fatal. We are powerless to supply the omission in this respect, and we must hold that the third clause of the will failed to dispose of one-lialf of the remainder of the $10,000. But our lack of power to effectuate the intention of the testator in respect of the one-half of the sum intended for the son will make no practical difference in the ultimate disposition of the estate so far as the latter is concerned. As to the one-half of the remainder of the $10,000 which we think *79 was intended for the son, the third clause was void for uncertainty, and, under well-established principles, that part of the fund fell into the residuary estate, which, by the terms of the fifth clause, went to him. That part of the will is as follows: “ I give and bequeath unto my son Addison S. Stevens after all of the above bequests are paid, all of the balance of my real and personal property.” The general rule governing residuary legatees in this respect is quoted by Judge Eabl in Matter of Benson (96 N. Y. 499, 509) from Williams on Executors (1044), where that learned author says: “When the residuary legatee is nominated generally, he is entitled in that character to whatever may fall into the residue after the making of the will hy lapse, invalid dispositions, or other accident,” and from 2 Redfield on Wills (442) to the effect “ that it seems to be well settled that a residuary bequest as to personal estate carries not only every thing not attempted to he disposed of, but everything which turns out not to have been effectually disposed of as void legacies and lapsed legacies. A presumption arises in favor of the residuary legatee as to personalty against any other person except the particular legatee. The testator is supposed to have given it away from the residuary legatee only for the sake of the particular legatee.” In Carter v. Board of Education (144 N. Y. 621) the residuary clause was quite similar to the one before us, and an invalid bequest was there held to" have fallen into the residuary estate. The necessary result from the foregoing views is that the adopted daughter, Helen S. Eldridge, is entitled to one-half of the sum remaining of the $10,000 legacy provided for in third clause of the testator’s will, and that Addison S. Stevens is entitled to the other half. Under the decision of the referee he is entitled to the sum remaining of tlie $2,000 legacy provided for in the fifth clause for the use of the widow, as to which there is no question. It follows that of the total sum remaining of the $12,000 left for the use of the widow under the two clauses mentioned, the adopted daughter should have five-twelfths and the son seven-twelfths. *80 All the other questions raised by the appellant seem to have been correctly disposed of in the court below and require no discussion here. The judgment appealed from should be modified in accordance with the views herein expressed, and as so modified affirmed, without costs of this appeal to either party. Cullen, Ch. J., Gray, Edward T. Bartlett and Chase, JJ., concur; O’Brien, J., absent; Hiscock, J., not sitting. Judgment accordingly.