#### Matthew Gallavan, Plaintiff, v. John Gallavan et al., Defendants.

(Supreme Court, Chemung Special Term,

April, 1900.)

Will — Void devises are covered by a general residuary clause.

Where it was the evident intention of a testator to dispose by his will of his whole estate, void devises contained therein pass, not to his heirs-at-law, but to bis residuary devisees under a residuary clause embracing both real and personal property.

Action for partition.

Reynolds, Stanehffeld <fe Collin, for plaintiff.

A. C. *&*J. P. Eustace, for defendants James and Kate Gallavan.

Fobbes, J.

This action is for partition, seeking the sale of three certain parcels of land described in the last will and testament of James Gallavan, deceased.

The parties to the action are the heirs-at-law and next of kin of the testator. By the last will and testament of said testator, he sought to devise certain lands described in the complaint.

Under the second clause of said will, Kate Gallavan was given the land and building known as *“*No. 377 Railroad avenue, Elmira, N. Y.,” and also the piece of land situate on “ Mt. Zoar St., on the north side thereof, which the testator bought of Conley, in fee forever.”

So far as the provisions of said will relate to this action, they read as follows:

> “ Third. I give and devise to my son, John Gallavan, one lot fifty feet front off the piece of land owned by me and situate on ' Mt. Zoar St., west of the Conley lot.

> *283“ Fourth. I give and bequeath to my son, Matthew Gallavan, one lot, fifty feet front, off the same piece mentioned in the last devise.

> “ Fifth. I give and bequeath to my daughter, Mrs. Dennis Demsey, one lot, of fifty feet front, off the same piece mentioned in the last two devises.”

The seventh and last clause of said will reads as follows:

> “ Seventh and lastly. I give, bequeath and devise to my son, James Gallavan, and my daughter, Kate Gallavan, all the rest, residue and remainder of my property, both real and personal in fee forever in equal shares, share and share alike.”

James Gallavan was appointed the executor of said will. It is conceded by both sets of attorneys, in said action, that the three devises first mentioned herein are absolutely void, under said will.

The only question to be decided is, whether the several parcels of land, referred to in said devises, pass .to the heirs-at-law, as though no will had been made, or whether they fall into the residuary clause, the title passing to James and Kate Gallavan, who take the residue, both real and personal.

After a careful review of all of the authorities cited, I am convinced that the intention of the testator was to dispose of all his estate, and that the unfortunate wording of the three devises referred to renders them void in law; and, unless they pass into the residuum, then the testator died intestate, as to this portion of his estate.

The earlier authorities, before the amendment of the Revised Statutes, undoubtedly strongly favored the passing of void and indefinite devises to the heirs-at-law; holding that as to such clauses the ancestor had failed to make a valid will. This position is clearly shown by the cases of Van Kleeck v. Dutch Church, 20 Wend. 456; Beekman v. People, 27 Barb. 260; Betts v. Betts, 4 Abb. N. C. 317, 417; Downing v. Marshall, 23 N. Y. 366; Gerard Titles to Real Estate (2d ed.), 362, and cases there cited.

I think all of the later authorities in our Court of Appeals stand opposed to the doctrine sought to be maintained by the plaintiff.

As the law now stands, there is no distinction made between bequests and devises, and uncertain or void devises fall into the residuum. 2 R. S. 57, § 5; Youngs v. Youngs, 45 N. Y. 254; Kerr v. Dougherty, 79 id. 346; Cruikshank v. Home for Friendless, 113 id. 337.

In many of the recent cases the courts seem to have taken the *284view of favoring a construction that will prevent partial intestacy,, rather than one which will permit it. Kerr v. Dougherty, 79 N. Y. 327; Lamb v. Lamb, 131 id. 227; Matter of Miner, 146 id. 121; Johnson v. Brasington, 156 id. 181, and cases there cited.

In the case at bar, the contention is that the will is void for indefiniteness of description, and uncertainty in pointing out specifically the land devised. .

The present doctrine in relation to lapsed and void devises was-discussed in Kerr v. Dougherty, 79 N. Y. 327. This was followed more fully and in point, I think, in Lloyd v. Carow, 88 id. 560. This authority holds as follows: “ A general residuary devise carries every real interest of the testator, whether known or unknown,, immediate or remote,.unless-it is manifestly excluded. The intention to include is presumed and an intention to exclude must appear; from other parts of the will or the residuary legatee will take.”

The same doctrine is held in Matter of Benson, 96 N. Y. 499, with reference to bequests. See also Matter of Bonnet, 113 id. 522; Lamb v. Lamb, 131 id. 227; Smith v. Smith, 141 id. 29; Carter v. Bd. of Education, 144 id. 621; Matter of Miner, 146 id. 121; Matter of Allen, 151 id. 243.

This last case holds that any part of the testator’s estate, not" legally disposed of, becomes a part of the residuary estate and passes under the residuary clause embracing both real and personal property, in the absence of a contrary intention found in the will. In this case there was a devise of real estate.

In the case of Morton v. Woodbury, 153 N. Y. 243, Martin, J.,. writing the opinion of the court, carefully reviews the authorities- and holds as follows: “No particular mode of expression is necessary to constitute a residuary legatee; it is sufficient if the intention of the testator be plainly expressed in the will that the surplus of his estate, after the payment of debts and legacies, shall be taken by a person there designated.”

He also quotes this significant language, found in Beekman v. People, 27 Barb. 252: “Residue means all of which no effectual disposition is made by the will,” and then adds, “ other than (by) the residuary clause.”

2 Revised Statutes, page 1876 (Banks’ 9th ed.), reads as follows:

> “ § 5. Every will that shall be made by a testator, in express-terms, of all his real estate, or in any other terms denoting his in— *285tent to devise all his real property, shall be construed to pass all his real estate, which he was entitled to devise, at the time of his death.”

This action, in its present form, cannot he maintained. The -demurrer must, therefore, be sustained, with costs to the defendant.

Findings of fact and conclusions of law may he drawn, with a ■decision in accordance with these conclusions.

Ordered accordingly.