(dissenting). The Surrogate found that the testatrix intended the subject provision of her holographic will to be a specific bequest of a certain bank account standing in her sole ownership at the time she executed the will and limited the bequest to the amount of such account at that time.
In view of the certainty of the Surrogate and the majority herein that the testatrix did not contemplate or intend the disposition of her jointly owned property, it should be noted that she made no such declaration at the time she executed her will and apparently at no time thereafter. From the present record it is impossible to know exactly what this testatrix intended and the problem facing the court is to ascertain her most probable intention. For this reason there is resort to the language of the will itself and to the conduct of the testatrix regarding the will. Because of the majority’s reference to the possibility of taking something away from this testatrix’ collateral heirs, it should also be noted that a substantial portion of this estate (stocks) passes by intestacy regardless of the bank accounts and that the consideration of blood-kin is not too strong where such kin are neither descendants nor ancestors.
The bequest of “ amt in banks ” is specific insofar as it is a gift of only so much of the assets of the testatrix as are bank accounts. (See Crawford v. McCarthy, 159 N. Y. 514, 518, 519.)
The issue below and argued on this appeal is not the question of general or specific bequests in the abstract, but rather whether or not the testatrix intended to convey all bank accounts as she owned or had a joint interest in at the time of the execution of the will, together with any subsequent bank accounts she might own at the time of her death.
An examination of the subject paper writing shows that she apparently effectively bequeathed all of her then assets other than bank accounts and this is conceded by the respondents on this appeal. As stated by the respondents: “Not only is the intent shown in the Will to dispose of all the property she owned at the time of the making of the Will, but it is clear from the Will that there was no residue at the time to dispose of.”
*331“ The testator’s intention as gathered from the will is, of course, controlling and, in seeking it, we must give to his words their natural and ordinary meaning.” (Matter of Gautier, 3 N Y 2d 502, 508.) There can be no doubt that this testatrix fully intended not to die intestate' and this conclusion is buttressed by the strong presumption against intestacy. The paper writing may have been hastily drawn, as found by the Surrogate, but such a fact does not necessarily imply that her intentions were hastily arrived at. The fact that she apparently felt that the joint tenant in the bank accounts would survive her is of no particular consequence since in all instances a testator has no way of knowing who is going to die first.
There is no reason for not giving effect to the intention of this testatrix to die testate in regard to bank accounts. “ Circumstances surrounding a testator at the time of the execution of his will may be given in evidence so that the court may see the facts as he saw them, and thus arrive at his intention, where the language alone is of doubtful import(Morris v. Sickly, 133 N. Y. 456, 459; emphasis supplied.) In the present case the record shows that this testatrix intended to die testate and the language does not appear to be of “ doubtful import ”. The use of the general phrase “ amt in banks ” is to be contrasted with the specificity of other bequests, e.g.:
“ 5. 100 Ford stock to Franciscan Far East Missions.
“6. 50 Steel, after my expenses are taken out, to Sacred Heart Program.”
While the question of intention relates to the time of making the will, the actions of the testatrix after such time are consistent with an intention to bequeath all of her bank accounts as of the date of her death and in view of the short period of time involved, it would be improper to ignore such facts.
The testatrix lived for one year following the making of the will during which period her uncle died and she became the executrix of his estate and the sole owner of joint savings accounts, which accounts were closed and the funds thereof transferred to accounts in her name. Taking the finding of the Surrogate that the testatrix was “ an intelligent, erudite woman”, it seems almost conclusive that when she changed the joint accounts to her sole account she was cognizant of her own will made a short time before which bequeathed the “ amt in banks ” (such words are unlimited as to terms and conditions) to designated beneficiaries. As noted by the majority such language is “ superficial ”, but all language is to the same extent superficial.
Assuming that the reasoning of the Surrogate should be accepted as to limiting the gift to those accounts in the sole own*332ersMp of testatrix, it does not follow that her intention was to limit the amount or value thereof as to require after-acquired benefits to pass in intestacy. “ A [bequest] * * * universal in its terms, would carry after-acquired [property] * * * without language pointing to the period of testator’s death ” (Carley v. Harper, 219 N. Y. 295, 304). As to after-acquired property, “ intention” means that the testator foresaw “ the possibility of his becoming possessed of other property”. (1 Davids, New York Law of Wills, § 566, p. 924.)
In the present case the testatrix undoubtedly was aware that she might become the sole owner of the joint bank accounts and when that did occur, she then had approximately one year to overcome or meet ‘‘ the dual contingencies that she might survive the operation and her uncle ”.
Giving consideration to the making of the will, the happenings during the one year ensuing period and the fact that the testatrix intended to dispose of all of her property, it seems more logical to say that ‘ ‘ amt in banks ” means all such accounts at the time of the execution of the will and any subsequent accounts that she might thereafter open in her name. To give any other meaning would put a strained and unrealistic interpretation upon the words which are not ambiguous in their meaning to a layman and which would result in that part of her estate being intestate. (See Matter of Warren, 13 A D 2d 269, 274, revd. 11 N Y 2d 463,468.) “A construction resulting in intestacy should, if possible, be avoided.” (Hutchings v. Hutchings, 144 App. Div. 757, 759, affd. 210 N. Y. 539.) “ 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. ’ ’ (Simpson v. Trust Co. of America, 129 App. Div. 200, 205.)
A comparison of the accounting papers with the will of the testatrix indicates that by virtue of the shares of stocks acquired by the testatrix subsequent to the will and prior to her death, the heirs at law of this testatrix will receive by intestacy an additional gross sum of about $64,000. While I do not agree that at the time this will was made, the bequest to the appellants was limited to the accounts then in the sole name of the testatrix, it is to be noted that if the interest of the appellants has as a result of the general language increased to a small fortune, the interest of the heirs at law has increased to the same extent.
The contention of the appellant Erica Brooks that this language constituted a gift also of all items in the bank safe-deposit boxes (in effect, the residue of the estate) cannot be sustained on either the law or the facts in this case.
*333The decree should be modified by providing that all bank accounts owned by the testatrix at the time of her death are to be paid to the appellants, share and share alike.
Gibson, P. J., Reynolds and Aulisi, JJ., concur in Per Curiam opinion; Herlihy and Gabrielli, JJ., dissent and vote to modify, in an opinion by Herlihy, J.
Decree affirmed, with costs to parties filing briefs, payable from the estate, and the matter remitted to the Surrogate’s Court for further proceedings, in connection with the completion of the judicial settlement or otherwise, not inconsistent with the opinion herein.