In re the Probate of a Paper Propounded as Last Will & Testament of Turner

McLaughlin, J. : Matilda Turner died on the 5th of August, 1909. Three days prior thereto she executed a last will and testament, which, after a contest, was admitted to probate.- At the time of her death and when the will was executed she owned six leaseholds, known as Nos. 325, 327, 329 and 331 Ninth avenue, and Nos. 400 and 402 West [646] Twenty-ninth street in the city of New York.- She left her surviving three sons, two daughters, named in the will, and certain grandchildren, not náméd, children of a deceased son. She attempted to dispose of the six leaseholds in her will, of which the following is a copy. ■ “New York, Aug. 2, 1909. “In the name of God, amen.” “I, • “ Matilda Turner bequeath unto my sons & daughters as fpllows in case of my death. . John Turner One house George Turner One house .William L. Turner one house Jennie S. Fox one house at 402 W. 29 St. N.Y.City and Matilda D. Turner One house 400 W. 29 St.' and .one house 331-9th Ave., Half Contents of house to Jennie S. Fox and Matilda D. Turneiv her “Matilda X Turner ' ' mark “ Witness: “ James W. Patterson, Com. of Deeds: “Nellie Looney “Ella M. Wyatt.” The grandchildren opposed the probate upon various grounds and two of them, by special guardian, have appealed from the decree admitting the will to probate and construing certain of its provisions. I am of the opinion that the decree should be reversed and probate refused. The testatrix undoubtedly intended to give one leasehold to each son, but which one it is impossible from the will or anything which appeared before the surrogate to tell. The learned surrogate, relying upon the authority of Duckmanton v. Duckmanton (5 Hurl. & Norm. 219), held that the sons John, George and William were each entitled to a leasehold and that they could elect in the order named in the will which one they would [647] xtake. The Duckmanton case is not an authority, because the question of election was not there really involved, inasmuch as two of the devisees had, in fact, determined the right of election by chance and this was held' to he binding. The three leaseholds not spe-. eifically given to the two daughters were of different values. To hold that the testatrix intended John to have first choice, George second, and William last is to base a judicial determination upon pure speculation and nothing else. We are all agreed, as I understand it, that, the decree cannot be sustained upon this ground. It is urged, however, that it may be sustained upon the' ground that the testatrix intended to give the three leaseholds to the three sons and that they take the same as tenants in common. To so hold, it seems to me, is not only speculative, but such result does violence to the language used in the will. The will gives John “ one house,” George “ one house ” and William “ one house.” It is true the three sons get. the three houses, but “ one house ” to each is quite different from an undivided third interest in three houses. If they took as tenants in common, an actual partition, could not be made so that each could get “ one house,” because they are of different values'and the testatrix desired, if language means anything, that each should have “ one house.” Words in a will amount to very little providing the intent of the testator can be ascertained and authorities are of very little value in ascertaining the intent in a given case. Here, the testatrix clearly intended that each son should have “ one house,” but which one to each it is absolutely impossible to tell. The bequests to John, George and William are, therefore, &o indefinite they cannot be carried out. (Asten v. Asten [1894], 3 Chan. 260; Gallavan v. Gallavan, 57 App. Div. 320; Harrington v. Abberton, 115 id. 177; Bingel v. Volz, 142 Ill. 214 ; Lomax v. Lomax, 218 id. 629.) The question raised in the Asten case is quite similar to the one here ¡^resented. There, the testator owned four houses in a given locality. He had four sons. By his will he attempted to give to each son, naming him, one house by the following description: “ All that newly built house being Ho. — Sudeley Place, Cotsfield Road, with the piece of ground in the rear thereof.” The four houses in Sudeley Place were all built by the testator. himself at about the same time and shortly prior to the time the will was exe [648] ctited. Tlie piece of ground in the rear of the houses referred to in< the will was, at the date thereof and at the testator’s death, fenced off from the adjoining land, but was not in any way divided or partitioned between the houses and was still unbuilt upon. ■ The four houses were not numbered at the date of the will. The testator had no other houses in Sudeley Place. It was held that the gifts failed for uncertainty. Pomer, J., who delivered the opinion, said : “ The testator, had four houses in Sudeley Place * * *. How on this will I cannot come to the conclusion that the testator intended to give one of these four houses to each son, without any selection on the part of the testator ; on. the contrary, it appears to me clear from the will that what the testator intended was to give a particular house to each son, and not to give any right..of' selection or election to any son. Owing, unfortunately, to the houses not being numbered at the date of the. will and their description as given in the will being undistinguisliablé, I cannot tell from the will which house the testator intended to give any of the sons. * * * TJ nder these circumstances, I cannot remedy the unfortunate state of things, but must declare the bequests void for uncertainty.” , In the Lomax case it was held that a provision in a will which located.laud devised in a section where the testator owned no land, would not permit parol evidence of a mistake in the description, although he, in fact, owned land answering the description in another section, of which he did not dispose in the will. Hot only this, but it will be observed there is nothing in this will by which the three leaseholds attempted to be disposed of can be identified. The case- is, therefore, upon this; point, one of patent ambiguity which' cannot be removed bv extrinsic evidence. (Brown v. Quintard, 177 N. Y. 75. See, also, cases cited in note 2, Lomax v. Lomax, 6 L. R. A [N. S.] 942.) The attempted gifts to the three sons being void for indefiniteness, the gifts to' the daughters must also fail. The general scheme, of the testatrix was to give one leasehold to each of the three sons and one daughter, and two leaseholds to the other daughter. The scheme having failed, at least so, far as the, three sons are concerned, it would be unjust to hold that despite this, result tlie two daughters might take under .the will and then share with the three ■ brothers [649] and the other next of kin under the Statute of Distribution. A portion of a will should not be upheld when the result will work injustice to those interested (Benedict v. Webb, 98 N. Y. 460), and where it can be ascertained what was the general scheme of the testator, one of the main objects of which cannot be carried out, then the whole scheme falls and no effect can be given to any part of it. (Holmes v. Mead, 52 N. Y. 332; Rice v. Barrett, 102 id. 161; Kalish v. Kalish, 166 id. 368 ; Brown v. Quintard, supra) If the foregoing view be correct, then it follows that the instrument offered for probate should have' been declared void for uncertainty. The decree must be reversed, with costs to each party appearing on the appeal, payable out of the estate, and the proceeding remitted to the surrogate for further action, in accordance with the opinion of this court. Clarice and Dowling, JJ., concurred; Ingraham, P. J., and Miller, J., dissented.