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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 359 If the will, at the end of the fifth clause of it, had ceased to speak of the mortgage of $113,000, it might, with some reason, be urged that the appellant, Mrs. Fleet, took a share thereof. It is plain that the numeral "eight," applied to the other children of the testator in that clause, is used mistakenly. It has no apparent meaning applicable to the facts of the case. As it cannot be applied, it must be entirely left out in the reading. Then the phrase, "other children," becomes controlling, and indicates all of the children of the testator, other than the three who are distinctly designated, as those to become the mortgagors to the others. For there is nothing in the fifth clause, nor in any preceding part of the will, to indicate with sufficient certainty what numeral ought to take the place of the word "eight." It is a rule in the construction of wills, that where a gift to children speaks of them as a specified number, which is less than the number in existence at the date of the will, the specified number will be rejected, on the presumption of a mistake; and all the children so in existence be held entitled, unless it can be inferred who were the particular children intended. (Garvey v. Hibbert, 19 Ves, 124; Spencer v. Ward, Law Rep,. 9 Eq., 507.)
The principle upon which the earlier cases went, was to avoid intestacy by reason of uncertainty. If there is a gift to a number of children, when, in fact, there are more than that number, either the general intent to benefit all the class must *Page 361 be acted on, and the statement of the number be treated as a mistake, or the gift must be held void for uncertainty; as it is not possible to say which out of the whole number are meant (Wrightson v. Calvert, infra); though sometimes this argument is thought not to be sound, and the authority of the precedents is yielded to rather than the strength of the reasoning. (Law Rep., 9 Eq., 509, supra; Stebbing v. Walkey, 2 Bro. C.C., 86.) It is otherwise, if the particular ones be pointed out by some additional description (Wrightson v. Calvert, 1 Johns. and Hem., 250); or where some of a class have already been provided for, and the specified number corresponds with the number of those unprovided for, and there is a division into the same number of shares. (Shepard v. Wight, 5 Jones Eq. [N.C.], 22.)
A like principle would have to be applied to this case, in which the number spoken of is greater than all "the other children" in existence. There is here an intent to benefit a class, which intent must be respected. But the exact number of that class is uncertain. Hence, there is the same necessity of a choice between defeating that intent, or holding that the use of the inapplicable number was a mistake. The law takes the latter horn of the dilemma, and gives the bequest to all of that class, be it larger or smaller in numbers.
Thus it is, that if the will stopped speaking of the mortgage at the fifth clause of the testament, it would be construed as a gift of the mortgage to the other children of the testator; that is, to all of his children other than the three who are directed to make the mortgage. Then Mrs. Fleet would take a share.
But we are not confined to the fifth clause, nor permitted to stop there. In the ninth clause the testator has made an emphatic utterance of his will as to the way in which the mortgage should go. The declaration in that clause must govern, because it is the later expression of his will, and because it is expressly stated as embodying his intention as to the mortgage. When we reach the meaning of that clause, it becomes apparent that Mrs. Fleet takes no share of the *Page 362 mortgage. In the first place, both the mortgage and the $15,000 to be paid by the son Frederick are alike affected, and both are to be "a part of the amount specifically devised to his children." But Mrs. Fleet confessedly has no claim to any part of the $15,000. And to hold that she has to the mortgage, we must interpolate words, so as to make the clause say, that the mortgage is to apply on the amount given to some of the six children, and the $15,000 on that given to fewer of those children. This would be unwarrantably to split up, and add words to, a general restrictive clause which, taken as it reads, is intelligible and distinctly expresses the intention, that the mortgage and the sum of money shall be a part of gifts to the same beneficiaries. Again, the testator directs that the mortgage and sum shall be a part of the "amount specifically devised." Now no amount, in an ordinary use of the word, that is, no sum of money, no security for a sum, no evidence of debt for a sum, is specifically given to Mrs. Fleet. She has a devise of specific real estate and a bequest of specific chattels. A share in a mortgage or a sum of money cannot become a part of a piece of real estate or of certain chattels. These are what are given to Mrs. Fleet, and, from their nature, she must and will take them as a whole or not at all. They are incapable of increase or excess, in kind, by adding to them a pecuniary legacy or a gift of a security. Whatever else the donee of them receives from the donor, must be something besides, and in addition to, them, leaving them the same in bulk and value. How, then, can she receive a part of the mortgage without taking in addition to, or in excess of, the specific devise and bequest to her, and in plain breach of the direction of the testator, that the gift of the mortgage shall not be considered a gift in addition to, or in excess of, the amount particularly given. To observe this direction of the will, if Mrs. Fleet receives a part of the mortgage, the executors must, in some way, diminish her interest in the real estate or the chattels specifically given to her. But that is impracticable, and obviously not within the intention of the testator. That the word "devised" is used, in speaking of the gift to his children, *Page 363 does not point to Mrs. Fleet, though she is technically a devisee. That word is used indiscriminately throughout the will with the word "bequeath," and is of no technical significance in this clause. A suggestion was made that the meaning of the ninth clause is: that so much of the mortgage as would belong to those of the six children who are the donees of pecuniary legacies, being five of them, and the whole of the $15,000 from Franklin, are to be a part of those legacies, and that the other sixth of the mortgage is to go to Mrs. Fleet, without becoming a part of any prior devise or bequest. There is no such division of the amount of the mortgage made by the language of the clause. It is the amount of the mortgage, that is, the whole amount of it, which is to be a part of the amount of the bequests, that is, the whole amount of them.
We, therefore, conclude that Mrs. Fleet does not take, under the will, any immediate interest in the mortgage.
We are further of the opinion, that the testator meant to charge the payment of the pecuniary legacies given by his will upon his real estate not therein specifically devised.
In Taylor v. Dodd (58 N.Y., 335), we said, that though, as a general rule, the personal estate is to furnish the fund for the payment of legacies, yet it may be entirely exonerated, or the real estate may be made to aid the personal, if there be express direction to that effect in the will, or if such be the intent of the testator to be gathered from its provisions. It is not necessary to state any different or further general rule in this case. Nor is it necessary that we go into a consideration of the effect upon this question of the residuary clause in this will.
Here, as in Taylor v. Dodd, there is no express direction to charge the legacies. Our conclusion is put upon the intention of the testator as manifested in the will, considered in view of the circumstances in which it was made. The testator has given to his executors a power of sale of those parts of his real estate not specifically devised. Now, there was no real estate for this power to operate upon save the residuary. That, by the will, was given to all his children. So that a *Page 364 necessary effect of giving a power of sale by the codicil, is more or less to disturb that gift of the will. It must have been in the mind of the testator then, when he made the codicil, that such would be a necessary effect. Such must have been his purpose. To what end? Not to the end of paying debts, for no mention of debts is made in the will. The personal estate was ample therefor. Debts of themselves, by the rights of creditors, will seek the real estate when the personal is exhausted. Not for the convenience of the devisees of the residuum, as such devisees, to convert it into personalty for their safety, ease or benefit. They were all adults, all capable of conveying. They took by equal shares. Either of them could, at any time, enforce a partition and sell or hold his share, as seemed best. And this meets and answers the plausible suggestion of the learned counsel for the appellant, that the testator foresaw the ruinous effects upon his unoccupied real estate of municipal taxes and assessments, and framed a door of escape that his executors might, at any time, throw open. The devisees, as the will stood, needed not this outlet nor the aid of the executors.
The power to sell is found in the codicil, and in the same clause of it with a testamentary provision, also first found in the codicil, for an investment of the principal sums of all the pecuniary legacies given by the will, for a payment of the income to the life-tenants of the legacies, and on their decease, respectively, of the remainder to their respective issue. By the will, the executors would have paid the legacies into the hands of the legatees for life. The codicil indicates an after-thought in the testator to secure the principal sum for the remaindermen, and, as cognate with that after-thought, a purpose to make sure the means of obtaining the whole of the principal sum by a sale of the residuary estate if there should be a deficiency. For there is no other object for which there was likely to be a need of a sale. And it is a familiar principle that real estate, sold in pursuance of a power of sale in a will, is deemed to be converted into personal property by the direction of the testator. (Horton v. McCoy, 47 N.Y., 21.) *Page 365 If this consideration be weak or be strong, it is aided by another. It is plain that the testator meant to dispose of his whole estate, and so that each of his children should share in it, and with an approximation to equality, all things considered. He looked upon them all as having claims upon his testamentary consideration. His gifts to them were from a sense of paternal duty and obligation. They were not gratuities flowing entirely from good-will. It is to be deemed of them, then, that he was solicitous that each one of his donees should be as reasonably sure of getting his or her share of the estate as any other. In such case, an intent to charge legacies upon land is more readily attributed to a testator. The intent is plain to provide for each member of the family, and to an extent for each approaching equality with the rest. This intent would fail, in this case, if the legacies were not charged upon the real estate. The law, then, infers, from provisions in the will well fitted to avoid such a result, an intent so to do. (Van Winkle v. Van Houten, 2 Green. [N.J.], 172, and cases there cited.) When, then, we find in this codicil this power of sale, with no other purpose hinted at, and with no other object appearing for the exercise of it, than to make sure of a fund for these pecuniary legacies, we are led, as we were by like considerations in Taylor v. Dodd, to conclude that the testator meant that the residuary real estate should, or might be, converted in aid of the personalty. We said in that case, which is applicable here: As, in the contemplation of the will and codicil, there was substantially no need of money, save for the payment of the legacies, so the power to sell to meet that need, must be to get money for that payment.
The judgment of the General Term should be affirmed.
All concur, except EARL, J., who was for reversal on first ground, and ANDREWS, J., who did not vote.
Judgment affirmed. *Page 366