#### Matter of the Judicial Settlement of the Account of Charles R. Whiting and Edwin T. Whiting, as Executors, Etc., of William H. Whiting, Deceased.

(Surrogate’s Court, Westchester County,

December, 1900.)

Will — Residuary clause — When legacies are general — Residue of a residue does not pass under such a clause.

A clause in a will, directing that “ In the event of my property not aggregating a sufficient sum to pay said legacies aforesaid they are *275to share pro *rata*in the increase or decrease of the same,” held to amount to a residuary clause and entitle the general legatees to share *pro rata*in the surplus over and above the debts and legacies.

A legacy, given “ as directed ” by the will of the mother of the testator, is not a general legacy and therefore does not entitle the legatee to share in the residuary estate.

A direction to executors to pay certain liens on the premises of the wife of a brother of the testator is not a general legacy to the sister-in-law and is in the nature of a preferred gift; but where the will gives the brother the option of paying his wife a gross sum amounting to the total of the said liens, she becomes a general legatee and shares in the residuary estate.

Where a general legacy lapses, by the death of the legatee before that of the testator, it falls into the residuary estate, but the residuary share of the deceased legatee does not pass under the residuary clause as it is the residue of a residue.

Proceedings upon the judicial settlement of the accounts of executors.

John Gibney, for executors.

Smith Lent, for Mary Whiting.

Milton 0. Palmer, for Thomas J. Whiting, George W. Waiting and Frank Still.

Frank L. Young, special guardian for Skerritt minors.

Silkman, S.

The testator, after the direction for the payment of funeral expenses, debts, and for the erection of a fence around cemetery plot, provides in his will as follows:

*“*To Stella Krause and Charles Krause the sum of two hundred dollars each as directed to be paid by my mother’s will with interest from my death unless I shall make a special deposit for them of said moneys before my death in the Sing Sing Savings Bank.

*“*To my sister Mary J. Flynn the sum of one thousand dollars.

*“*To my sister Sarah Skerritt the sum of two thousand dollars.

*“*To George W. Whiting the sum of five hundred dollars, my brother.

*276“I order and direct my executors to pay whatever mortgages or liens there may be against the house and lot belonging to Mary Whiting, wife of my brother Edwin T. Whiting, situate in Highland Avenue in the Village of Sing Sing, which I hear is about sixteen or eighteen hundred dollars, and take and file a satisfaction of said liens or mortgages.

“ To Stella Krause the sum of two thousand five hundred dollars when she becomes twenty-five years of age, the same to be invested for her and the income paid to her for her support and maintenance or part of said principal may be applied for that purpose if necessary.

*“*To Charles Krause the sum of one thousand dollars to be paid to him when he is of the age of twenty-five years, the same to be invested and the income of the same or any part of the principal to be applied to his care and support, and should either Stella or -Charles Krause die before twenty-five years of age his or her legacy or both shall be paid equally to my sisters and brothers or their heirs-at-law.

“ To Emma Elynn, my niece, the sum of five hundred dollars at twenty-one years of age.

*“*To Lizzie Elynn, my niece, the sum of one thousand dollars at twenty-one years of age, the aforesaid moneys to be invested for the said Emma and Lizzie Flynn and income applied for their care or support or part of the principal if necessary.

*“*It is my will that none of my estate or moneys shall go vest in the children of my brother James Whiting, deceased, whatever, notwithstanding the former clauses of this will.

“ I also give the option to my brother Edwin of having a mortgage paid off on his wife’s house or of paying the said sum to his wife Mary Whiting of eighteen hundred dollars!

“ In the event of my property not aggregating a sufficient sum to pay said legacies aforesaid they are to share *pro rata*in the increase or decrease of the same.

*“*Also any one of the said beneficiaries under this will who will contest the same his or her share to go to the others share and share alike.”

Sarah Skerritt, one of the legatees above named, died prior to the testator, and the legacy to her consequently lapsed.

The accounts show that the testator left more than enough property to pay all the legacies, including that to Sarah Skerritt.

*277The question is, how this surplus, including the amount of the lapsed legacy, which would pass under the residuary clause, is to be distributed. Is there a residuary clause here? The language of the testator is, “ In the event of my property not aggregating a sufficient sum to pay said legacies aforesaid they are to share *pro rata*in the increase or decrease of the same.” The draughtsman of this will was very unfortunate in the use of words and modes of expression. The grammatical construction must certainly be discarded in arriving at the intention of this testator, and it is our duty to do so in order that his intent may he accomplished, if it is possible, without doing violence to the structure of the will itself. The intent is to be gathered from the whole scheme of the will, and not from isolated sentences. The testator is presumed to have had in mind the extent of his property, and to have intended to dispose of it all, and we must, therefore, give such a construction as will prevent intestacy, if possible. It has been said that “ If the plain and definite purposes of a will are endangered by inapt or inaccurate modes of expression, and we are sure we know what the testatrix meant, we have the right, and it is our duty, to subordinate the language to the intention. In such a case, the court may reject words, supply them, or transpose them, to get at the correct meaning.” Lathrop v. Lathrop, 18 N. Y. Supp. 652; Phillips v. Davies, 92 N. Y. 199. Again, it has been said that, “ At the threshold of every suit for the construction of a will lies the rule that the court must give such construction to its provisions as will effectuate the general intent of the testator as expressed in the whole instrument. It may transpose words and phrases and read its provisions in an order different from that in which they appear in the instrument, insert or leave out provisions if necessary, hut only in aid of the testator’s intent and purpose. ETever to devise a new scheme, or to make a new will.” Tilden v. Green, 130 N. Y. 42. The testator here makes no specific reference to the residue of his estate. It is, however, not necessary to use any particular mode of expression to constitute a residuary legatee. It is sufficient if an intention is disclosed, that the surplus of the estate after the payment of debts and legacies shall be taken by any particular person or persons. Bearing in mind that the testator is presumed to have intended a disposition of his entire estate, how are we to construe the sentence: “In the event of my property not *278aggregating a sufficient sum to pay said legacies aforesaid they are to share *pro rata*in the increase or decrease of the same.” Grammatically, this sentence borders upon the ridiculous, nevertheless we can see a meaning expressed by an untutored mind, in the language used, namely, that the legatees were to suffer *pro rata,*in case the estate was insufficient to pay all the legacies, and to share *pro rata*in case the estate was more than sufficient. It was unnecessary for him, to, provide for the former, because the law would have taken care of that. It was necessary for him to provide for the latter, or be guilty of an intestacy. I think it does no violence to the structure of the will to transpose and rewrite this sentence as follows: *“*In the event of my property aggregating a sum more or less than sufficient to pay the legacies aforesaid, then the legatees are to share or suffer *pro rata*in the increase or decrease of the same.” Reforming the sentence in this way, it gives meaning to the apparently unmeaning, and creates testacy where intestacy would otherwise result.

The question next to be determined is, whether Stella Krause and Charles Krause, who are given the sum of $200 each, are to share in the residuary estate by reason of such bequests. I think not. These sums of $200 each are not paid by reason of the testator’s bounty, but owing to some direction of testator’s mother, and are apparently a legal or moral debt of the testator. I do not think from the language used that he regarded them as legatees who were to benefit under the residuary clause.

We now come to the provision in favor of Mary Whiting. This is not the ordinary general legacy. It might be said it is more in the nature of a specific or demonstrative legacy, while strictly neither. It is a direction to pay a debt of another, and to cause a lien to be satisfied of record; nevertheless, the option is given to testator’s brother Edwin to convert the direction to pay the mortgage debt into a general legacy of $1,800. I should be inclined to the view that, were it not for this option, Mary Whiting could not be regarded as a legatee, entitled to take under the residuary clause, for the reason that the direction to discharge a mortgage and cause its cancellation would have to be regarded as a preferred gift, in order to effectuate the clear intention of the testator; namely, a discharge of the lien. The legatee would not, therefore, suffer by reason of an insufficiency of assets, and as she could not suffer, it could not fairly be said that *279she should share in any surplus. The exercise of the option by Edwin, that his wife shall take a legacy of $1,800, changes the situation, and brings her within the class who are to take the residuary estate. The testator must have contemplated that the exercise of this election would make her a general legatee, and as' such, entitled to share in any surplus. This view is strengthened by the fact that the clause, providing for the right to an election, immediately precedes the clause relating to the sharing of the legatees in the increase of the estate, and is part of the same paragraph.

One further question remains to be considered. The legacy of $2,000 to Sarah Skerritt, as has been said, becomes lapsed, and under the authorities passes under the residuary clause. Now, as we have construed the residuary clause to make the general legatees the residuary legatees, in proportion to the amount of their legacies, we have Sarah Skerritt as one of the residuary legatees; and while the lapsed legacy to her passes under the residuary clause, her share in the residuary estate cannot so pass. It is a residue of a residue, and as to this it must be adjudged that the testator died intestate. Kerr v. Dougherty, 79 N. Y. 327; Booth v. Baptist Church, 126 id. 245; Beekman v. Bonsor, 23 id. 312; Floyd v. Carow, 88 id. 570.

The estate must, therefore, be distributed upon the following plan: Take the aggregate of the general legacies, $10,300, the surplus would then be divided in the following proportions:

Mary J. Flynn................................. 10/103

George W. Whiting............................. 5/103

Mary Whiting............................... 18/103

Stella Krause................................. 25/103

Charles Krause............................... 10/103

Emma Flynn.................................. 5/103

Lizzie Flynn..................................... 10/103

And to the next of kin of the testator, being the residue of the residue which would have gone to Sarah Skerritt ......................................... 20/103

Decreed accordingly.