In Re the Accounting of Fifth Avenue Bank

Loughran, J. This is a proceeding brought by an executor for settlement of its account and for the construction of a will. Nellie V. Thompson directed that her residuary estate be divided into two equal portions. One portion she gave to her sister, Hannah W. O’Hara. The other she gave in equal shares to her brother, Bryan W. O’Hara, and to her husband’s sister, Elizabeth Thompson. “ These two portions,” says the will, “ are given absolutely and in fee simple to these legatees, their heirs, executors, administrators and assigns forever.” Elizabeth Thompson predeceased the testatrix and was survived only by a brother and nephews and nieces. The Surrogate ruled that the words we have quoted were to be construed as words of limitation, with the result that the gift to Elizabeth Thompson lapsed. The Appellate Division held that the words were to be construed as words of substitution, with the result that a lapse was prevented and the gift went to Elizabeth Thompson’s distributees. The foregoing provisions of the will stand quite apart. We find nothing elsewhere in the instrument that colors them or suggests a special purpose in their use. The gift is “ to these legatees, their heirs, executors, administrators and assigns.” The disjunctive word “ or ” is no part of the context. In such circumstances, as orneases plainly say, the words can be construed only as mere words of limitation. (Matter of Wells, 113 N. Y. 396; *136 Matter of Tamargo, 220 N. Y. 225. Cf. Matter of Evans, 234 N. Y. 42; Decedent Estate Law [Cons. Laws, ch. 13], § 29.) The ruling of the Surrogate must, therefore, be upheld. A question of practice remains. Under the ruling of the Surrogate, the legatees Hannah W. O’Hara and Bryan W. O’Hara take the whole residuary estate. They have not themselves appeared in this proceeding. Before the Surrogate, the executor contended that the gift to Elizabeth Thompson had lapsed. On the appeal by Elizabeth Thompson’s distributees to the Appellate Division, the executor, as respondent, maintained that the ruling of the Surrogate was right. As appellant here, the executor takes the same stand. Elizabeth Thompson’s distributees, as respondents here, move to dismiss its appeal on the ground that the executor is not a party aggrieved by the result in the Appellate Division. We agree that the executor has no interest in the issue sufficient to entitle it to be heard in this court solely upon its own account. (Bryant v. Thompson, 128 N. Y. 426; Isham v. N. Y. Assn. for Poor, 177 N. Y. 218; Matter of Chapal, 278 N. Y. 495.) It appears, however, that throughout this proceeding the executor undertook to represent the legatees Hannah W. O’Hara and Bryan W. O’Hara and that this appeal was taken by it at their request. We see no reason for denying the competency of the executor so to act in their behalf. The consequence of a contrary view would be that any party to a fiduciary’s accounting would be at the peril of a technical default unless he made an independent appearance at every stage of the proceeding. We are not prepared to impose so rigorous a requirement — at least where, as in this instance, only questions of law were involved. The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division payable out of the estate to all parties appearing separately and *137 filing briefs. The motion to dismiss the appeal from the order of reversal should be denied, without costs. The appeal from the order of the Appellate Division denying a motion to bring in parties, for a reargument, and to amend the record on appeal and the remittitur, should be dismissed. Lehman, Hubbs and Finch, JJ., concur; Crane, Ch. J., O’Brien and Rippey, JJ., dissent on the question of the construction of the will. All concur as to denial of motion to dismiss appeal from order reversing decree of Surrogate and as to dismissal of appeal from order denying motion to bring in parties, for a reargument and to amend the record on appeal and the remittitur. Ordered accordingly. (See 279 N. Y. 789.)