In Re the Probate of the Will of Poonarian , 234 N.Y. 329 ( 1922 )

On June 15, 1904, Hagop A. Poonarian, a rug dealer in the city of Rochester, N.Y., who was about to make a journey to Constantinople, wrote his will in a ledger kept by him in his business and had it witnessed by four of his acquaintances. It reads as follows:

"H.A. Poonarian Rugs and carpet Storage to Rochester Carting Co. six five Bale Rugs and one Bax agen rugs alltogether total 6 if any thing Happen to me in Constantinople or in ocean of all my will be I have four sisters and one Half Broders Mr. Deecran A. Poonarian his sher five Dolar th Balenc equ to be sher and sher alak Jhunpush Illwanian Gadar Zardian Toomy Ajaimian

"Taquhin Matosian sher be Five "HAGOP A. POONARIAN. "Witnesses "C. IRVING PAGE "HOWARD L. SMALING "WM. H. BURNETT ROCHESTER, N.Y.U.S.A. "E.E. BOYNTON June 15th, 1904."

Poonarian went to Constantinople. He shortly thereafter returned to the city of Rochester where he continued to reside and carry on his business until the date of his death on the 27th day of October, 1920. What he did with the ledger containing his will during the sixteen years from its date to his death is not known. All that appears is that it was produced and the leaf containing the will offered for probate. The contestant is a half-brother who claims that upon the face of the instrument it is clearly conditional, and that the condition not having happened, the paper is no longer a will. The surrogate of Monroe county agreed with the contestant and refused probate. The Appellate Division, however, disagreed with the surrogate and by a divided court reversed this determination.

In our judgment this will was to take effect as the last will and testament of Hagop Poonarian only in case anything happened to him while on his trip to Constantinople. As he returned to his home in Rochester in safety and the condition was never met or fulfilled, this paper ceased to be a will and was not the will of Poonarian at the time of his death in 1920. We are led to this conclusion by the few simple rules which govern matters of this kind. In the first place it is an underlying principle that we must take what the maker, himself, says in the instrument without changing language, punctuation or grammar to carry out what we may think was intended. Safety lies in giving to the words used by the testator their natural and everyday meaning, and stopping here if they be intelligible. In this supposed will, we find Poonarian stating that his property consists of rugs which he gives, share and share alike, to his four sisters "if any thing Happen to me in Constantinople or in ocean."

Poonarian was contemplating a trip to Constantinople to buy rugs. He was an Armenian. He realized the dangers incident to the voyage and perhaps to life in Turkey. One of the witnesses to the will testified "at that time there was some trouble over there and he had to go through a war zone." He accumulated his personal property which consisted of rugs and put them in a storehouse in Rochester. These were articles of merchandise used in his business — he was in the rug business. He made his will in his account book stating that if anything happened to him on this voyage these rugs were to go to his four sisters. Nothing did happen to him on the voyage. He came back to Rochester where he continued for some years in the rug business. It is fair to assume that he took the rugs out of storage and used them. The storage of the rugs was a temporary affair incident to his going to Constantinople. The will also was a temporary disposition, conditioned upon Poonarian's dying or being killed while on his trip. The word "if" is used to introduce a condition or supposition. It means "in that case." No word that I can think of more clearly expresses a condition which may arise unless the word "condition," itself, is used. The testator could have said "in case anything happens to me in Constantinople or on the ocean" or he could have said "on condition that anything happens to me in Constantinople or on the ocean," but these phrases all mean the same thing, and in our judgment clearly indicate that the testator intended to give his rugs in the storehouse to his sisters only in case he died on his trip to Constantinople. What happened to these rugs after the testator's return we do not know. He continued in business and evidently accumulated other property. Where he kept this account book or what other books he had, is not revealed by the evidence. Whether this particular account book of the year 1904, in which the will was written, was treasured by him and kept in a place apart, or was discarded, we do not know.

As this alleged will specifies the particular journey which was to be undertaken and gives no indication on its face of a general disposition to be made of the testator's property in any event, we are inclined to think that the mention of the trip to Constantinople was not merely an inducement for the making of a will, a suggestion or reminder to the testator of the uncertainty of life, whereby he disposed of his property in any event, but was mentioned as a contingency, a chance that he might meet death on the trip, in which case he willed his property. If the contingency did not arise or the chance happen there was to be no will. Apparently he intended to use the rugs in his business when he returned. He only meant to give away his rugs if he had no further use for them because of a fatal voyage.

The cases upon the question of conditioned wills are numerous and vary in results with the phraseology and wording of each instrument. The reading which we have given to this will finds support in Eaton v. Brown (193 U.S. 411); Alexander's Commentaries on Wills (sections 106, 113); Magee v. McNeil (41 Miss. 17); Maxwell v. Maxwell (60 Ky. [3 Metc.] 101);Dougherty v. Holscheider (40 Tex. Civ. App. 31); Oetjen v.Diemmer (115 Ga. 1005) and Robnett v. Ashlock (49 Mo. 171).

The order of the Appellate Division should, therefore, be reversed and the decree of the surrogate affirmed, with costs in this court and the Appellate Division.

HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur.

Ordered accordingly.