#### Matter of the Estate of Jabez H. Jones, Deceased.

(Surrogate’s Court, Oneida County,

December, 1911.)

Wills—-Interpretation — Disposal of the entire estate: Rules and implications-— Construction to avoid intestacy: Particular residuary provisions of doubtful meaning — “ Surplus ” to be distributed.

One who makes a will is presumed, in the absence of anything indicating the contrary, to have intended to dispose of his entire estate.

Where a testator at the beginning of his will gives all his property to certain relatives and then provides that “ if after paying these bequests there should be a surplus left over it shall be paid to the above named beneficiaries *"pro rata”*lie will be deemed to have intended to include in the word “ surplus ” the shares of any

of the beneficiaries who failed to take by reason of their having died during the lifetime of the testator. . ' ,

Proceeding for the judicial settlement of the accounts of an' executor.

A. S. Malsan, for Peter Williams, executor.

Milton Carter, for Everett Williams, John H. Williams and Thomas Williams.

Sexton, S,

March 13, 1901, the deceased made a will; and letters testamentary were issued November. 14, 1907, to- Peter Williams, who filed his final account June -20, 1911. ■ Ann Williams, a sister of deceased; was named as legatee in said will, hut died before the testator, leaving Everett, Thomas E. and John IT. Williams, sons, who-now claim -the share of their mother as next- of kin on the ground that deceased- died, intestate as to the same.' The executor opposes this view and-contends that the^ will' disposes of the entire estate. The testator left neither descendants nor real estate, hut did leave personal property inventoried at $21,983.30.

One of the witnesses to the will, not a lawyer, drew it on *48a will blank. The paragraph to be considered reads as follows:.

" *First.*After all ray lawful debts are paid and discharged, I give, devise and bequeath all my property both real and personal as follows (viz.) ; the sum of five hundred dollars 'to be used for.the purpose of paying the expenses of my funeral and providing a monument to mark my last resting place; to my nephew William R. Jones, Gouverneur, R. Y., the sum.of one thousand dollars; to my niece, Mrs. Elizabeth Jones of Alder Creek, R. Y, the sum of one thousand dollars, and to her brother William H. Jopes, the sum of eight hundred dollars; to Walter Jones, adopted son (so-called) of my deceased brother William H. Jones the sum of seven hundred dollars; to Grace Ricker son of Indian Orchard, Mass, the sum of five hundred dollars; to my niece Mary Ann Millard of Turin, R. Y.,'the sum of one thousand dollars; to my nephew- Thomas D. Roberts of Utica, R. Y., the sum of one- thousand dollars; to my nephew Humphrey Roberts of Turin, R. Y., the sum. of one thousand dollars; to my sister, Mrs. Ann Williams of Lowvillé, R. Y., the sum of two thousand dollars; to Mrs. Elizabeth Jones widow of my deceased brother David H. Jones of Chicago, '111. the sum of five hundred dollars; to my nephew D. Milton' Jones of Milwaukee, Wis. the sum of five hundred dollars; to my nephew Samuel H.' Jones of Chicago, 111. the sum of one thousand dollars; to my sister Mrs. Martha J. Williams of .Whitesboro, R. Y., the sum of two thousand dollars; to -my sister-in-law Mrs. Jane Jones of Scranton, Io-wa, a certain mortgage that I hold against Marshall E. Jones of Scranton, Iowa; and if after paying 'these bequests there should be á surplus left over it shall be paid to the above-named beneficiaries *pro rata,*with the exception of t-he 'last named beneficiary, • who shall not be included in such surplus as a beneficiary.”

The clause that the ■ contention centers on is next to the last one, and reads — “ and if after paying these bequests there should be a surplus left over, it shall be paid to the above-named beneficiaries, *pro rata ”*

The contestants affirm that this is a residuary clause, and *49that the legacies of those dying before the testator lapsed, and that' the surviving legatees cannot profit thereby, as they presumptively take as tenants in common and not as joint tenants, under the Real Property Law; hence the lapsed legacies and the *pro rata*proportion of the “ surplus ” passed under the Statute of Distribution to the next of kin.

¡Nature abhors a vacuum and the courts abhor intestacy. You cannot find two horses gaited alike, nor can you find two wills worded alike, hence the hooks furnish but little help beyond laying, down some unyielding general rules.

“In all cases it is the duty of the court, in construing á • grant or will, to search out the intention of the testator or grantor, and construe the instrument so as to carry "out that intention, unless such construction is absolutely inconsistent with some well settled rule of law.” Carr v. Smith, 25 App. Div. 214; affd., 161 N. Y. 636; Tilden v. Green, 130 id. 72.

“ It is the duty of courts in construing even doubtful and obscure provisions of a will to so interpret them as to uphold rather than to render them void.” Hopkins v. Kent, 145 N. Y. 367.

“ Where two constructions are possible, one of which will 'sustain, and the other defeat, the will, the one sustaining it should be preferred.” 29 Am. & Eng. Ency. of Law, 350; Vernon v. Vernon, 53 N. Y. 357; Kalish v. Kalish, 166 id. 368; Mills v. Tompkins, 110 App. Div. 212.

“ There is always a presumption that the testator did not contemplate intestacy, and a construction that will result in even partial intestacy is not to be adopted if a different construction. is permissible.” Matter of Miner, 146 N. Y. 121; Johnson v. Brasington, 165 id. 181; Matter of Hammond, 74 App. Div. 547; Ward v. Stanard, 82 id. 386; Simpson v. Simpson, 113 N. Y. Supp. 370.

The fact that a testator made a will at all creates a fair presumption that he intended to dispose of all of his-property (Byrnes v. Baer, 86 N. Y. 210), and this presumption is strengthened when it is considered in connection with the rule which frowns on even partial intestacy. Mills v. Tompkins, *supra;*Schult v. Moll, 132 N. Y. 122; Johnson v. Brasington, *supra.*

*50In this State 'the doctrine is firmly established that, in a will of personal estate, the testator is presumed to speak with reference to the time of his death. Lynes v. Townsend, 33 IST. T. 558.

On the subject of intent the testator is always a proper subject for analysis. The man"under consideration at death had $7,990.80 in bank,, and $13.930 in fifteen different investments, with some personal effects, which made a total estate of $21,983.30. These investments were so shrewd that the final account showed an. increase of $23,111.31, or a gross estate of $45,094.61,- and without the loss of a cent. This splendid business showing on -his part aids in the pre-" sumption that he had his will drawn the way he wanted it and used words to that end in their' ordinary sense. A reference to the will shows how clearly the testator comprehended the objects of his bounty. He gave the correct names and addresses in various States of. fourteen legatees with their degree of relationship to him, varying the size of the leg acies presumptively in keeping with their necessities.

At the very beginning of 'his will he says: “I .give * * * all my property,” and then names his relatives who are to have it, and then adds: “ and if after, paying, these bequests there should be a surplus left over it shall be paid to the above-named beneficiaries *pro rata ”*with one exception. If all the legatees had survived the testator they unquestion1 ably would have taken his entire estate.

The will is dated March 18, 1901, .and the testator died August 29, 1907, hence it may be assumed that his health was good.when he made his will; and, contemplating that some of so large a number of legatees might fail to, survive him, he sought to provide .against the contingency of partial intestacy by providing that those only .who..should-Survive him should .share in iis estate.. He said to his executor: *“*If after paying, these bequests,” meaning payment to those legally entitled at distribution, “ there, should -be a surplus left .over,;it shall, he.paid to the- above. .naméd¡;beneficiaries *pro..*fata-.”.. meaning: that, those. persons.. .who ■ survived him; thereby becoming “'beneficiaries,” should *.share;-"pro*rata' in any *“*surplus ” arising from lapsed legacies, unbequeáthed property or increase.

*51“ In the absence of a contrary intent, words descriptive of the objects of a gift refer to the death of the testator, and not to the date of the will or period of execution.” 8 Paige, 116; Van Alstyne v. Van Alstyne, 28 N. Y. 377; Lynes v. Townsend, 33 id. 564; 29 Am. & Eng. Ency. of Law, 355, and cases cited.

The objects of his gift and the sharers in the surplus he called “ beneficiaries,” a name which could only be given to those legatees who survived him under the above definition.

In Grover v. Wood, 174 Mass. 540, the Supreme Court construing “ to the several beneficiaries under this will, except to E., share and share alike,” held that the widow, who clearly was given- only $3,000, in fulfillment of an ante-nuptial agreement, still, being a beneficiary under the will and not having been excepted from the residuary clause, was entitled to share «in it, the court saying: “Yet she receives something under the will, and in the natural and ordinary sense is a beneficiary, and we think the term was used by the testator in this sense.”

“ The question is not what the testator had in contemplation when he made his codicil, but what the words he used will embrace, according to their ordinary signification, which must prevail unless qualified by other expressions in the' instrument.” Sweet v. Geisenhainer, 3 Bradf. 122.

The word “ surplus ” means “ the remainder of a thing, or that which is left from a’ fund which has been appropriated for a particular purpose;” and as here used it means that which is' left “ after paying these bequests * * * to the above named beneficiaries,” as stated by the testator; as only “ beneficiaries ” could share in the “ surplus,” it must, therefore, comprehend the legacies of those who failed to survive the testator, for the' reason that" the testator appropriated his estate for a particular purpose, namely: to be "paid to hjs '“beneficiaries” in specified sums, and, after such payment,, he appropriated the" “ surplus or remainder, if any; to these _s"ame. “ beneficiaries'”- to be'divided .among them *pro'reda,*except one.-'

“ Beneficial ” 'means '“ receiving, or entitled to have, or receive, advantage, use, or benefit.” 2 Am. & Eng. Ency. *52of Law, 169. “Beneficiary,” according to Webster, means: “ The recipient of another’s bounty.”-

It seems clear that- the testator intended that only those-named by him who should survive him should share in his estate, and that they should have it all and divide it as indicated by him.

One of the witnesses to the will, not-, a lawyer, drew it, hence the testator was without counsel. An intention not to die intestate may generally, under such circumstances, be presumed. Matter of Morrisey, 72 Misc. Rep. 573.

Tinder the circumstances of this particular will, and in view of the language used, and of the fact that the word *“*and ” conjoins the legacies and the surplus, and all in practically one sentence, indicating an intention of giving to the survivors only one legacy made up of a specified sum to which was to be added a *pro raía*of the “ surplus,” it seems to me that the general intention not to die intestate is clearly indicated and should be presumed. Lamb v. Lamb, 131 N. Y. 227; Williams v. Pettit, 138 App. Div. 394.

If the clause under consideration is a residuary clause, as claimed by contestants, unless it- “ clearly limits its operation to the contrary, it will be construed to dispose of all of the testator's estate remaining undisposed of, or which may be added by lapses, or otherwise; and, if it is an ambiguous residuary clause, it will be construed broadly rather than narrowly.” Williams v. Petit, *supra.*

At the tim'e of the testator’s death, when the will became operative, Walter Jones, Ann Williams, Elizabeth Jones and Jane Jones had died.. Their deaths did not affect or alter the provisions of the will at all, but left the situation the same as if they had not been mentioned in it. • These persons, not • having taken the primary gift, acquired no right in the “ surplus.” The primary gifts, or legacies, and the “ surplus ”' constituted only one fund which was to be divided .among the beneficiaries, - the legacies to be first paid; then to each was to be added such a proportionate amount of the “ surplus ” as would dispose of the entire estate.

*53The objections to the executor’s account herein are overruled, and said account is hereby allowed and settled as filed.

Decreed accordingly.