Because I feel that the majority has gone out of bounds in the field of judicial interpretation of wills and trespassed upon the forbidden field of making wills, I must respectfully dissent from its opinion.
The will under consideration was not prepared by an unskilled layman, unpracticed in the art of will-drafting and unimpressed with the importance of exactness and accuracy in testamentary language, but by a lawyer of recognized ability, capable of precision and exactness in the use of words. This circumstance is to my mind controlling and distinguishes this case from those cited in the majority opinion. 2 Page, Wills (Lifetime ed.) § 921; In re Estate of Barrett, 141 Misc. 637,253 N Y S. 658.
To use the words of Mr. Justice Olson, in a recent decision:
"We have here plain language carefully chosen by one professionally capable of giving the words chosen by him the exact thought meant to be conveyed. We are not to surmise, conjecture, or suppose something else. We should accept them as they are." Radintz v. N.W. Nat. B. T. Co. 207 Minn. 56, 60,289 N.W. 777, 779.
Also important here is the fact that testator was the draftsman of his own will. Any chance of error in conveying his exact wishes to the draftsman was thereby entirely eliminated. In re Will of Northup, 92 App. Div. 5, 87 N.Y. S. 318.
The term "books of account" is not a technical one. It should be construed in its ordinary and popular sense. 6 Dunnell, Dig. *Page 166 Supp. § 10263. There is no occasion here to refer to surrounding circumstances to determine testator's meaning when he used it. The term is in common use and has a precise meaning. It applies exclusively to tangibles, not to intangibles; it refers specifically to choses in action, not to choses in possession. It cannot include both. "Not to mean one thing is to mean nothing. Terms which wobble are worse than useless." Piper Ward, The Fields and Methods of Knowledge, p. 175. By refusing to give "books of account" the one and only meaning which that term possesses wherever and whenever used, this court is assuming a forbidden role. It is putting words in a will, which, for reasons best known to himself, testator omitted to put there. This is directly contrary to the rule that —
"The court cannot give effect to an unexpressed intention of the testator nor add a term to the will, or modify the language used in order to make what seems a more proper or reasonable devise, where there is no ambiguity in the language used." In re Estate of Convey, 177 Minn. 266, 269, 225 N.W. 17, 18.
Testator's legacy of "books of account," without including the accounts, may seem to us "a worthless token," yet it must be remembered that Miss Renshaw was also appointed executrix of the will and given a liberal legacy ($2,500) for her anticipated services as such. Testator may have had his own personal and peculiar reasons for giving her "all books of account, which have been, maintained and employed" in his law business, just as he undoubtedly had for giving his associate "all the files and case records." It might have been for the purpose of keeping the information contained in the account books confidential, after the accounts themselves had been collected by her as executrix. It is entirely probable that, notwithstanding his gratitude to Miss Renshaw for her many years of faithful service, testator considered that his first obligation was to his son, for whom he had great affection. But whatever his reasons, the fact remains that all he bequeathed Miss Renshaw were the "books of account," and this court, I feel, is without authority to give her more. *Page 167
In In re Will of Northup, 92 App. Div. 5, 13,87 N.Y. S. 318, 324, where the court held that a lawyer's bequest of "all my law business, law books, papers, safe, bookcases and office furniture, and all property pertaining to my business" did not include outstanding accounts receivable for legal services, it was said:
"* * * it is impossible for the legatee * * * successfully to claim them [receivables for legal services], except on the theory that it was a devise by implication. It is said, however, that a gift by implication will only be adopted where the probability of such intention is so apparent that the contrary cannot be supposed to exist. (Post v. Hover, 33 N.Y. 593.) * * * There is nothing to indicate a reason for any purpose in the mind of the testator to devise choses in action by language which describes choses in possession. The last will and testament of the deceased Northup was prepared by himself, a lawyer of large experience and it may be presumed that he knew the effect generally of omitting to describe property the subject of devise."
Applying the well-accepted rules to which I have referred, I can reach no other conclusion than that Miss Renshaw is not entitled to testator's book accounts in addition to his account books.
MR. JUSTICE THOMAS GALLAGHER took no part in the consideration or decision of this case. *Page 168