In re the Probate of the Last Will & Testament of Disney , 103 N.Y.S. 391 ( 1907 )

Houghton, J.:

On proceedings for the probate of the last will and testament of John A. Disney, deceased, the appellant, a daughter of a deceased sister of the testator, not provided for by the will, filed contesting allegations, and asked that in case of admission to probate the surrogate construe the residuary clause thereof. That clause provided as follows :

“ Seventh. All the rest, residue and remainder of my estate, of every kind and nature whatsoever, I do give, devise and bequeath to my mother Mary E. Disney, and my sister Fannie K. Cohn in equal shares or portions, to have and to hold the same absolutely and forever ; and in the event of either dying without issue surviving, I give, devise and bequeath the share or portion of the one so dying to the survivor.”

Although mentioned as mother, Mary E. Disney was the stepmother of the testator, she having married his father and had two children by him, Fannie K. Cohn and Charles S. Disney, who were hence brother and sister of the half blood of testator. The son Charles had died leaving a daughter, Florence, an infant, who is still alive.

Mary E. Disney died before the testator, and it is conceded that certain bequests to her in prior portions of the will lapsed and fell into the residuary clause above quoted.

The surrogate held that Fannie K. Cohn, the survivor of the residuary legatees, took.the whole of the residuum, and so decreed.

The appellant contends on her appeal therefrom that the testator died intestate as to one-half of the residuum, because Mary E. Disney did not die “ without issue surviving,” and thus fulfill the condition of the gift over to the survivor, for she, in fact, left her surviving Fannie K. Cohn, her daughter, and Florence Disney, her granddaughter.

The respondent insists that the word “ issue ” should be held to mean children only, and that the testator, understanding, fully the situation of affairs, intended the term £i dying without issue surviving” to apply to Fannie only; and that in the event of her death •prior to his own without issue, and the survival of the mother, all was to go to her, and that .if the mother should predecease him all was to go to Fannie.

Little is to be gathered from the context of the will which throws light upon the meaning of the testator, aside from the fact that the dominant idea was to provide for his mother and his half-sister, Fannie-EL Colin. Both were made, executors, and no bpquests were made to- any other of his relatives aside from $1,060 each to his two living sisters and the same sum to the child of Fannie: * ■

The primary meaning of “issue” or “lawful issue” is descend ants,, and in the absence óf the use of the words -in a will in another .sense they will be so. construed. (New York Life Ins. & Trust Co. v. Viele,. 161 N. Y. 11; Chwatal v. Schreiner; 148 id. 683.)

In' our view of the case so far as the question presented upon this appeal is concerned, it is unimportant to determine whether the testator used the word “ issue ” in its broad or restricted sense, or to' .enter-into refinements as to whether the word is used respecting, Fannie alone or applies to both the residuary legatees;. for we are of the opinion that in no event has the appellant any interest in the estate of the testator.

Even if Fannie K. Colin did not take the whole of the residue as the survivor of the two residuary legatees, we think there was a gift by implicatio'n to the issue of Mary E. Disney, and hence that' the one-half of the residue which she would' have taken had she lived,.passed.under the-will to Fannie, her daughter, and to Florence,, her granddaughter..

The testator having executed his will is presumed to have intended to dispose of all his property, and if possible from fair intent,, the courts- will so -construe its provisions as to prevent intestacy of any part. Especially' is this rule -true of a residuary clause. (Lamb v. Lamb, 131 N. Y. 227.)

The position of the appellant is t-hat the surviving residuary legatee cannot take "because Mary E. Disney did not meet the condition of the will and die without issue, and hence that because she died With issue thei-e was. no disposition of .the oñe-half of the residue. .

.The' words'“ dying without issue surviving” must ,be presumed to have been, used for some purpose.' Fannie had a child to whom the testator had bequeathed $1,000. If both the mother and Fannie had- predeceased the testator, unless these words- be given some effect, although both may have left issue, the testator must in such Casé have been held to have died intestate as to the residue of his estate. Having-Used the word's “ dying.without issue surviving.” can it bé said that he intended to die intestate if-both died before-himself and each left issue surviving her? Ho such intent can be imputed except from necessity. The more reasonable hypothesis is that in case either died leaving issue, such issue should take in place of the one so dying.

Bequests and devises by implication are not infrequent. Where land is devised to the heir after the death of A, although no specific life estate is conferred upon A, he takes one by implication.

In King v. Barker (3 Bradf. 126) the testator devised and bequeathed the residue of his estate to children of his deceased brothers as tenants in common, and provided as follows: “And should either of the said seven children die before me, without leaving añy child or .other descendant, I hereby give, devise. and bequeath the residuary share or portion of the one so dying to her or his surviving brothers or sisters.” One of the residuary legatees having died before the testator leaving children, it was held by the surrogate although there was no express gift, that tlierd was an implied gift to such children.

The opinion in the above case is a logical and learned one, and refers to the authorities sustaining the holding at hand at the time it was written. The question does not appear to have been considered by any other of the courts of this State. In England, however, the question has been considered in several cases.

By the will considered in Ex arte Rogers (2 Madd. 449) a sum was given to a niece “ and at her decease without child or children ” over to another. The legatee died leaving children, and it was held that there-was a gift by implication to.her children and that the money did not pass to the contingent legatee.

Bequests by implication founded on the same principle were held to have been effectual in Abbott v. Middleton (21 Beav. 143) and in Crowder v. Clowes. (2 Ves. Jr. 449) and in Wainewright v. Wainewright (3 id. 558) and in Dowling v. Dowling (L. R. 1 Eq. Cas. 442). The rule was applied in Holton v. White (23 N. J. Law [3 Zab.], 330).

Whether the entire residue passed to Fannie or whether the one-half was divided between her and the granddaughter, Florence, is not before us to specifically decide. In our opinion the testator did not die intestate as to any part of his residuary estate, and so far as tnis appellant is concerned she has no interest in the estate whether it passed one way or the other. Fiot’having any interest, whether the decree of the. surrogate-was right or wrong, as. between Fannie Eh Colm and Florence Disney is of no.importance to the appellant, and the decree must be affirmed, .with costs. .

Patterson, P, J., McLaughlin and Clarke, JJ., concurred; ' Ingraham, J., dissented.