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In the Matter of the Construction of the Will of Daniel Hunt, Hobart P. Hunt and Another, Individually and as Executors, etc., of Daniel Hunt, Appellants Raymond Francis Chandler, an Infant, etc., and Another
Rich, J.:
The learned surrogate has found that as to the one-fifth interest in the residuary estate of Harrison Hunt, which was vested in Hattie Hunt, and which descended to her father, Daniel, upon her death, Daniel died intestate (116 Misc. Rep. 23); and this appeal presents for our consideration and construction paragraphs first and second of the will of Daniel Hunt, deceased, which read:
“First. Whereas, my grandchildren Albert Bell, Jr., and Raymond Chandler, will, upon my death, be each entitled to one-fourth of the property devised and bequeathed by the will of my brother, Harrison Hunt, to me for fife, with remainder to my children; and, whereas, my two sons are living and working with me and helped me to accumulate my property, I have omitted in this my will to further provide for the two grandsons.
“ Second. All property, real, personal or mixed, wheresoever situated, which at the time of my death may belong to me or be subject to my disposal by will, I give, devise and bequeath unto my two sons, Hobart Park Hunt and Harrison G. Hunt, absolutely, equally, to be divided between them.”
In the first place it is necessary and quite proper that we should indulge in the presumption that at the time of making his will he knew the nature and condition of his property, and that he was possessed of the one-fifth interest in the residuary estate of Harrison Hunt, which descended to him upon the death of his daughter, and it is reasonable to suppose that in speaking of the interest of his grandchildren in the estate of his brother Harrison as being one-fourth instead of one-fifth each, he made a mistake. The law presumes that he intended to dispose of all of his property
[129] by this will and that he did not intend to die intestate as to any portion of his estate. (Smith v. Dugan, 145 App. Div. 877; affd., 205 N. Y. 556.) We are of the opinion that he intended to devise all of his property by the second paragraph of his will to his sons, Hobart P. and Harrison G. Hunt.
It follows that the decree of the Surrogate’s Court should be reversed upon the law, with one bill of costs to appellants, payable out of the estate.
Kelly,'P. J., Jaycox, Manning and Young, JJ., concur.
Decree of the Surrogate’s Court of Westchester county reversed upon the law, with one bill of costs to appellants, payable out of the estate. Settle order on notice.