Construing this instrument in the light of the surrounding circumstances, the situation of the testatrix and of her family, and the nature of her estate, it is certain that she intended to dispose of her six leaseholds, giving three to her two daughters and three to' her three sons. She intended to give particular houses to each of her daughters, for she specified which each Was to have. She intended to give Nos. 325, 327 and 329 Ninth avenue to her three sons, for those were the only, ones she had, except those given to the daughters. Plainly she did not intend to give a particular house to each of the sons, for in the gift to them she did not attempt to specify which each should have, as she was particular to do in the case of the daughters. There is nothing to indicate that she preferred one son to another, and certainly that will not be. inferred from the order in which they were named, as it was doubtless a mere accident that one happened to be named ahead of another. For anything appearing to the contrary it might well be assumed that she regarded them alike, and it is plain that she intended to treat them alike, for, not intending to give a particular house to *650either, she used precisely the same words with reference'tp each. Putting ourselves in the place of the testatrix, then, we glean from the words of the will an intention to. give the three leaseholds, Nos. 325, 327 and 329 Ninth avenue, to her three sons, to treat the three alike, and not to give a particular house to either. We can give effect to that intention only by holding that the sons take said three leaseholds as tenants in common. If I have correctly discerned the intention of the testatrix from the language of the will and such extrinsic evidence as the court is always entitled to consider in construing a will, that is the end of the discussion, because mere words and technical rules, aids to construction, cannot be suffered to defeat an intention thus ascertained.
We should have no difficulty in sustaining the will, if in place of the words, “John Turner One house, .George Turner One house, William L. Turner One house ” were substituted the words “ John Turner, George Turner, William L. Turner three houses.” To be sure, standing alone, there is a difference between the two expressions, But the expression used is not to be construed apart from its context. Neither the testatrix nor the draftsman of the will perceived the distinction between “ one- house to each son ” and an “ undivided interest in three houses to each.” The ignorance and unskillfulness of the draftsman should make us the more astute in our search to discover the intention of the testatrix. (Lytle v. Beveridge, 58 N. Y. 592.) If we can glean from the body of the instrument, read in the light of the/circumstances proper to be considered, an intent to give the three leaseholds, Nos. 325,. 327 and 329 Ninth avenue to the three sons, to treat them alike and not to give a particular house to each, I fail to see why we cannot give effect to that intent the same as though the testatrix had expressed it in appropriate words. Certainly we should do that, unless precluded by controlling authority, and it is very difficult to find, one will case which can be said to be controlling in another on the question of construction.
In Gallavan v. Gallavan (57 App. Div. 320), cited by the appellant, it.was assumed that the devises in question were void, and the question considered was, whether the realty, attempted to be devised went to the residuary devisee or to the heirs at law. That is the only case in this State, cited' by counsel or discovered in such *651research as I have been able to make, in which the provisions of the will resembled in any respect the will now in question. And it will be seen upon examination, that while the two provisions resemble each other in some respects, there are striking differences. It is unnecessary to cite the long line of cases in which the courts have changed or moulded language to carry out .the testamentary intention. Many of them are cited in the note to section 477 of Scliouler on Wills, third edition.
It is quite»true that there is a patent ambiguity in this will. The words “ one house” standing alone tend to identify nothing. But Lord Bacon’s canon cannot be applied in all strictness, certainly not in the construction of wills. ( Vide Jarman Wills [5th Am. ed. Rand & T.], 743 ; Schouler Wills [3d ed.], § 581.) The statement made by Chancellor Kent in Mann v. Executors of Mann (1 Johns. Ch. 231,234) • “ * * * • that parol evidence can not be admitted to supply or contradict, enlarge or vary, the .words of a will, nor to explain the intention of the testator, except in two specified cases : 1. Where there is a latent ambiguity, arising dehors the will, as to.the person or subject meant to be described; and, 2. to rebut a resulting trust ” must be understood as referring only to evidence of declarations of the testator and the like, to explain his intention. It is one thing for the expositor of a will to put himself in the position of the testator, for the ■ purpose of understanding the language used, and quite a different thing to admit evidence of the intention of the testator dehors the will. And if any rule with respect to the construction of wills is well settled, it is, that in construing wills the court is always entitled to know the surrounding circumstances, the situation of the testator and of his family, and the nature and extent of his property. The testatrix had three houses aside from those specifically designated as intended for the daughters. She gave three to her three sons. Can there be a possibility of doubt that the three not specified were intended for the three sons \ If she had had three houses on ¡Ninth avenue and three houses somewhere else, I grant that it would be a case of patent ambiguity which could not be removed by extrinsic evidence to show what was intended. But surely, an ambiguity, which is removed the instant disclosure is made of the testator’s property, should not be allowed to defeat a will.
*652While we have found no case in this State directly bearing on the one in hand, there are a number of English cases which tend to support the conclusion that this is a valid will. In the case of Duckmanton v. Duckmanton (5 Hurl. & Norm. 219), relied upon by the', learned surrogate, the words of the will were, “ From and after the death of my wife I give to John, and his heirs one freehold close of land situate in Ridgway Field, and from and after the death of my' wife I give to George one freehold close of land situate in Ridgway Field,” and it was held that the devise was good. Plainly, what was said on the-question of election,, or the maimer in which, the devis'eés chose to determine the right of election, had no bearing whatever on the question of the validity of the devise.. In Tapely v. Eggleston (L. R. 12 Ch. Div. 683) the testator . possessed three leasehold houses in K.,street and bequeathed “ two houses in. IC. Street” in trust for P.-for life. Sir George- Jessel held that P. was entitled to elect. That case was decided upon the principle-stated by Jarman that “ * * * where the gift .comprises a definite portion of a larger quantity, it is not rendered nugatory by the omission of the testator to point out the. specific part which is to form such portion, the devisees or legatees being in such case entitled to select. * * *” (Jarman Wills [5th Am. ed. Rand. & T.], 652.) In Asten v. Asten ([1894] 3 Ch. 260), cited in the prevailing opinion, the testator indicated that he intended to give a particular house to each, because he undertook to describe the devise to each by reference to the house number. . But even in that case Mr. Justice Romer stated that lie had offered to grant an inquiry as to the testator’s intention but that the offer was refused! And he said that if it had not appeared that" the testator intended to give a particular house to each son, he would have been prepared to hold, upon the authority of Duckmanton v. Duckmanton and Tapely v. Eggleston, that the sons were entitled to select in the order named. In Scliouler on Wills (3d ed. p. 673) the learned author refers to that case in a note to section 583, thus: “A.sten v. Asten (1894) 3 Ch. 260, appears to go far in declaring void a devise of newly-built houses, not numbered ; for in case of" a block of such houses separately devised," it seems fair to treat such devisees as tenants in common of the whole block.” Hot only is there an absence of language in this case indicating, an *653intention to give a particular house to each son, but it is to be inferred from the whole will that the testatrix did not intend to give a particular house to either son. We do not think the doctrine of election is applicable, but the case is one in which it is not only fair, as said by Schouler, but in accordance with the testamentary intention, to treat the sons as tenants in common of the leaseholds Nos. 325, 327 and 329 "Ninth avenue.
The decree of the surrogate should, therefore, be modified . accordingly.
Ingraham, P. J., concurred.
Decree reversed, with costs to all parties appearing, payable out of the estate, and proceeding remitted to surrogate as directed in opinion.