In Re the Will of Forde

Rippey, J. This is an appeal from an order of the Appellate Division, first department, unanimously affirming the decree of the Surrogate which held that the will being construed made an outright gift of decedent’s property to the sister of the testatrix. The will was in the handwriting of the testatrix and read as follows: “ Carlton House 22 East 47th Street, New York City — N. Y. July 10th 1926— “ I, Eleanor Forde, of the above address, do hereby bequeath all my real and personal estate, I may die possessed of to my sister Emily Forde, of Brighton, Ontario, Canada, for her maintenance, as long as she lives, the estate to be administered by Alfred Barmore Maclay, 14 East 84th St., N. Y. City, N. Y., according to his judgment. “ I hereby appoint Alfred Barmore Maclay executor without bond. “ I declare this to be my last Will and testament. “ Signed ELEANOR FORDE. “ Witness — Georgina M. Onet Victor M. Onet ” *128 Appellants assert that the language of the will clearly manifests an intention to grant less than absolute fee. It is their contention that under the will Emily Forde was given only a life estate, that the income therefrom should be used by the trustee, Mr. Maclay, to maintain her during her life and that the remainder should pass by intestacy to the appellants. The gross estate of the testatrix at the time of her death amounted to less than $35,000, of which $11,000 was invested in income-producing securities and the balance was held in cash. Her sister was her nearest next of kin and was sixty-nine years old and in “ fairly good health ” and apparently the only one deceased had in mind when she made her will. A strong bond of affection existed between the two sisters. They traveled together extensively in this country, in Canada and abroad; they made it a point to be together each summer. Deceased never visited her nephews, the appellants, or her grandniece. Alfred Barmore Maclay, who was named in the will as executor, had been acquainted with the decedent for many years. She hadjjbeen a trained nurse and companion to his mother. He and deceased had many contacts after his mother’s death. , It seems clear that it was the intention of the testatrix as shown by her will to give her property to her sister absolutely and not me'rely the life use thereof. She attempted to do so in the best way that she knew how with her limited knowledge of the use of legal expressions and her attempt should not be frustrated by a strained construction. There are some considerations which, with other facts and circumstances, furnish aid in determining her true intent. (1) Having gone to the trouble to make the will, she cannot be presumed to have intended to die intestate as to the bulk of her property. The mere fact that she made her will raises a strong presumption to the contrary. (Schult v. Moll, 132 N. Y. 122, 127; Hadcox v. Cody, 213 N. Y. 570; Waterman v. N. Y. Life Ins. & Trust Co., 237 N. Y. 293.) There would be an intestacy as to the remainder if the will were to be construed as giving the sister merely *129 a life use. If the will is construed as conveying an absolute gift to the sister of the whole estate, however, there is no intestacy. (2) Had the deceased intended that the sister should have only the income during her life, it seems that she would have declared what was to be done with the remainder. The fact that she did not so declare is some evidence that the gift to her sister was to be absolute. (3) In the first part of the will testatrix bequeaths the property absolutely to the sister and it has frequently been held that such a bequest should not be cut down by subsequent words unless an intent so to do is unmistakably indicated. (Banzer v. Banzer, 156 N. Y. 429, 435; Tillman v. Ogren, 227 N. Y. 495.) The subsequent words she used may readily be construed to refer to the purpose which the testatrix had in mind in making the outright gift, namely, to give the property to the only one who was really near to her and the only real object of her bounty to provide for her for life and to make sure her property would be used for the sister’s care and not dissipated by placing it in the hands of her trusted friend and advisor for administration. There is no unmistakable indication in the words and expressions used that she intended to cut down the estate from an absolute gift and to limit the gift to the income of a trust for life. The order appealed from should be affirmed, with costs to both parties payable out of the estate.