It may not be inappropriate once again to recall Judge Learned Hand’s caution to be wary of making “ a fortress out of the dictionary ” (Cabell v. Markham, 148 F. 2d 737, 739) and to note his admonition that there is “no more likely way to misapprehend the meaning of language * * * than to read the words literally, forgetting the object which the document as a whole ” has sought to achieve (Central Hanover Bank & Trust Co. v. Commissioner of Internal Revenue, 159 F. 2d 167, 169; see, also, Matter of Fabbri, 2 N Y 2d 236, 240). “ A word * * * may vary greatly in color and content ” depending on the intention of its author and the circumstances under which it is used (Towne v. Eisner, 245 U. S. 418, 425). The majority has chosen to construe the words ‘ ‘ heirs at law ” in a highly literal and restrictive sense and I, therefore, must dissent.
*245The construction proceedings were limited to paragraph Eleventh of the will which provides in part that “ I give and bequeath to Utica Trust and Deposit Company, of Utica, N. Y., the sum of twenty-five thousand dollars in trust for the use of my son, Wallace B. Johnson, during the term of his life and upon his death I give and bequeath the same to his heirs at law”. The Surrogate took proof to construe the words “ his heirs at law ’ ’ in order to determine the class of persons entitled to receive the trust fund on the death of the son, Wallace B. Johnson, which occurred on August 29, 1967. The decree adjudged that the words ‘ ‘ his heirs at law ’ ’ were intended * ‘ to designate those entitled to receive the trust fund on the death of Wallace B. Johnson embraces only those heirs of Wallace B. Johnson who are blood relatives of his father, Herman I. Johnson ”. Appellant is the daughter of the brother of testator’s wife, and therefore, is the first cousin of testator’s son, Wallace B. Johnson. Accordingly, she is not a blood relative of testator, but would otherwise qualify as an heir at law of testator’s son.
The rule to be followed in construing a will is well settled. It was succinctly enunciated in Matter of Larkin (9 N Y 2d 88, 91) that “ the prime consideration of all construction proceedings is the intention of the testator as expressed in the will. All canons of construction are subordinate to this consideration. If the testator’s intention is not clear then it ‘ must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.’ (Matter of Fabbri, 2 N Y 2d 236, 240, emphasis supplied; Matter of Gautier, 3 N Y 2d 502, 509) ”. A reading of the will “as an entirety ” prompts the conclusion that the testator did not intend to limit his son’s heirs to heirs who were also the testator’s own blood relatives, but indicates an intention to include all the heirs of his son. The Fifth and Sixth paragraphs make bequests to two sisters. Paragraph Seventh is a bequest to a sister-in-law which, interestingly enough, is substantially larger than the combined bequests to testator’s two sisters. Bequests are also made to a cousin, two employees and three eleemosynary institutions. Furthermore, in paragraph Twelfth the testator again makes reference to ‘ ‘ the heirs at law of my said son who shall be living at the time of his death ’ ’.
Provisions such as the above do not limit those who may inherit under this will. The document is thorough, complete and has clearly expressed the testator’s intention. Had testator *246desired to exclude certain descendants of his son he could easily have accomplished this end. Had he wished to favor his blood relatives, this too, he could have done in simple and clear language. While blood relatives are favored in construction proceedings if the testator’s intention is in doubt, courts cannot rewrite wills to aid blood relatives (7 Warren’s Heaton, Surrogates’ Courts [6th ed.], §§ 19-21). The will shows no such motivation and, I submit, the Surrogate should not have rewritten the will by his decree to supply an unexpressed intention of the testator. .
In limiting distribution to blood relatives the Surrogate stated that since the will was executed before the amendment of the Decedent Estate Law, effective September 1, 1930, it must be construed according to the law as it existed prior to the effective date of the amendment. The Surrogate and the majority of this court rely, as authority for their position, on Matter of Battell (286 N. Y. 97) and Matter of Waring (275 N. Y. 6). Both of these cases are distinguishable, for the wills made express reference to the “ law ”. In Battell (supra, p. 103) the court said “ When he said ‘ the law ’ he meant 1 the law ’ and he neither said nor meant that distribution should be made according to some scheme which was not ‘ the law ’ in effect at that time.” In Waring (supra, p. 9), the court noted that the testator made a bequest to “ the next of kin of the said John, according to the laws of the State of New York ” (emphasis supplied), and went on to point out, at page 13, that the result arrived at “is in exact accord with the intent of the testator. * * * His intent * * * is clear.” In the case at bar, however, the testator made no reference to the existing laws at the time of execution of his will, nor has he indicated any intention to rely on those laws. The intention present in Waring (supra) is lacking here, and Waring, therefore, becomes inapposite. Accordingly, I conclude that the law at the time of the execution of a will may only be applied where a testator demonstrated an intention to rely upon it. The testator, in the case at bar, has indicated no such reliance and no preference for his blood relatives. The decree appealed from should be reversed.
Marsh, Moule and Bastow, JJ., concur with Witmer, J.; Goldman, P. J., dissents and votes to reverse the decree in opinion.
Decree affirmed with costs to all parties filing briefs, payable out of the estate.