The testator by his holographic will, after sundry pecuniary and specific bequests, provides literally as follows:
“10. All the residue and remainder of my estate real and personal I devise and bequeath unto my executors and the survivors and survivor of them absolutely and in fee simple In Trust nevertheless for the following uses and purposes to wit: To separate one eighth part thereof having regard to the value of the cash & securities composing the same — not including therein any real estate or interest in real estate which I may own at the time of my death,— and to pay over and distribute the said eighth share unto and among the following institutions and associations in the proportions as follows, to wit.”
Here follow the names of thirteen charities, with the proportions of the estate given to them.
“11. And as respects the remaining seven eighths part of my residuary estate including any real estate or its proceeds to hold & manage the same and out of the net income derived therefrom to pay over in monthly instalments beginning -with the date of my death Three hundred dollars per annum for the use of my cousin Caroline B. Bauduy, now of New York & of her daughter Elizabeth B. Bauduy and the survivor of them during their lives respectively; and to pay over the balance of said net income (and the whole of it after the death of the survivor of my said cousins) in equal shares quarterly unto such of my sisters and issue of my deceased brother John and sister Susan as may be then living,” with further provisions not important in this connection.
The words italicized above are interlined in the original.
The testator thus devised his residuary estate, real and personal, as a whole, to his executors in trust, “to separate one-eighth part thereof,” and it cannot be doubted that “one-eighth part thereof” means one-eighth part of the entire estate, so that, if the following clauses were free from difficulty, it is clear that the charities would be entitled to one-eighth of both real and personal estate. The direction is to “separate” this one-eighth, and this can only mean to separate this share from the other seven-eighths; that is, it is to be set aside in a certain way or subject to certain conditions. This the testator proceeds to determine by the words “having regard to the value of the cash & securities composing the same — not including therein any real estate;” the words above italicized being interlined in the original will. Either the testator, in copying his will from a draft, omitted them, or, on reading his will before execution, desired to clarify his meaning. The fact is not important, for, in either event, he thought the words important, and so they are, for *560they show that this one-eighth, which, up to that point, included both real and personal estate, was to be “composed of” or made up from personalty; so that this one-eighth of the entire estate was to be valued in cash or securities. The next words, “not including therein any real estate,” on which the except-ant bases his argument, mean, in our opinion, simply this, that the real estate is taken out of the one-eighth of the entire estate, and its value in cash or securities substituted in its place, and the interlineation in the eleventh clause is correlative thereto.. The learned counsel for the exceptant argued that these interlined words were surplusage, but they should not be disregarded if any significance can be attached to them, and the testator thought them of sufficient moment to interline them. This view is strengthened by the final direction to the executors, viz., “to pay over and distribute the said one-eighth share,” which means the one-eighth share of the entire estate, for this refers to the “one-eighth part thereof” in the preceding clause.
Much learning was evinced by the learned counsel for the exceptant in his argument as to the meaning of the word “including.” It is used here in its ordinary sense; the real estate is not included, or it is excluded, if that word be preferred, but the real question is, excluded from what? The exceptant thinks it is excluded from the estate before one-eighth thereof is given to the charities, but, in our opinion, it is merely excluded in the distribution of that one-eighth after its value has been ascertained. There were practical reasons for this, for this one-eightli interest was given to thirteen charities in different proportions, and some of the real estate owned by the testator consisted of his undivided one-fifth interest in two parcels and his undivided one-thirtieth in another, so that he may well have considered it a more practical scheme to have his real estate pass to the trustee of the “remaining seven-eighths of his residuary estate.” Certainly, if the testator had intended the charities to take one-eighth of his residuary personal estate only, and the trustee to take the remaining seven-eighths thereof and all his real estate, it is difficult to understand why he did not say so in a few words, and very few would have been necessary.
As we think the meaning of this will becomes clear enough after analyzing its somewhat awkward phraseology, it hardly seems necessary to discuss the cases in which the word “including” or similar words are used. The learned counsel for exceptant very justly says its meaning is to be determined by its context, and decisions upon other wills are of little value in the interpretation of this.
After our brief opinion was filed on Dec. 30, 1921, dismissing the exceptions in this case, we granted a reargument in order that other counsel might be heard. We have had the benefit of further careful and elaborate discussion, but adhere to our former view, and the exceptions are dismissed and the adjudication confirmed absolutely.
Gest, J.,May 16, 1922, supplemental opinion. — Since our opinion was filed in this case dismissing the exceptions, it has been represented to us that in our opinion we have misquoted the words in the eleventh paragraph, “including any real estate or its proceeds,” counsel claiming that the word “any” should be read as “my.” We had examined the original will before our opinion was written and have since re-examined it. The word in question is oertainly indistinctly written in a cramped hand, but admitting that it might be read by others as “my,” we think it is as we have transcribed it, and we are confirmed in the view that the word is “any” by our examination of the tenth paragraph, where the testator has plainly written “not including therein *561any real estate or interest in real estate which I may own at the time of my death.” The two clauses are obviously correspondent, and the testator used the same word in both of them. We may add, that even if the testator had used, or if he does use, the word “my” in the eleventh clause instead of “any,” our opinion as to the meaning of his will would not b.e changed.