In Re the Probate of the Will of Disney , 190 N.Y. 128 ( 1907 )

Haight, J.

John A. Disney died unmarried and without issue, leaving him surviving brothers and sisters and descendants of a deceased brother and sister as his heirs at law and next of kin. He left a last will and testament, which was presented for probate, with a request by interested parties that its provisions be construed. The only question brought up for review has reference to the construction placed upon the seventh clause of the will. It is as follows: “ 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 IÍ. 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.”

Mary E. Disney ivas the testator’s stepmother, and she died before the testator, leaving her surviving a daughter and a granddaughter, a child of a deceased daughter. The surrogate held that Fannie K. Cohn, the survivor, took the entire residuary estate, and the Appellate Division by a divided court has affirmed his decree.

It will be observed that the provision of the will in question first gives and devises to the mother and to the sister Fannie the whole of the residuary estate in equal shares, and that they are to hold the same absolutely and forever. Had, therefore, the stepmother survived the death of the testator she would have taken one-half of the estate absolutely and forever. The provision which follows, to the effect that “ 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,” was évidently inserted by reason of his having in mind that his mother or sister might not survive him, and that he intended that the death referred to therein" should be a death occurring during his lifetime. If this be so, then we have the provision giving to the mother and sister the residuary estate absolutely and forever upon his death. But in the event of one dying during his lifetime without issue her surviving, he gave the same to her survivor. To my mind the language used is clear and unambiguous, and leaves but one conclusion, and that is, that inasmuch as the mother did not die without issue her surviving, the contingency provided for in the will did not occur, under which the survivor Fannie was entitled to take the whole. When the language used is as clear and unambiguous as it is in this case, it does not appear to me that .we should evade its meaning by an endeavor to spell out a different intent on the part of the testator by resorting to the rule, to the effect that the testator did not intend to die intestate, especially when that rule has. many exceptions and is only occasionally followed. The subject has received careful consideration in the opinion of Ingraham, J., in the Appellate Division, and we, therefore, deem further discussion unnecessary.

The order of the Appellate Division should be reversed and the decree appealed from should be modified in accordance with the views herein expressed, with costs in both' courts to all parties who appeared on this appeal, payable out of the estate.

Cullen, Ch. J., O’Brien, Yann, Hisoook and Chase, JJ., concur; Edward T. Bartlett, J., not voting.

Ordered accordingly.