In re Selner

Carswell, J.

In a proceeding inter alia to construe the will of Gustave Seiner, deceased, it has been held that he died intestate as to the corpus of the residuary estate. The administrator of the estate of his son Henry appeals and asserts that the corpus was bequeathed by implication to the testator’s three sons.

The will contains four numbered paragraphs. The first paragraph directs the payment of debts and makes a nominal bequest to each of the testator’s three sons. The second paragraph bequeaths and devises the residue of the estate to the three sons, in trust, with a direction that the testator’s wife shall receive the entire income during her life, and after a complimentary reference to his wife the testator states: “ I am specifically providing that only the income of my estate be given to my wife, in view of the fact that I know she is so kind and charitable at heart, and I do not desire to have her kindness imposed upon in order that the estate may not be dissipated.” The third paragraph provides that in the event his wife predeceases the testator he bequeaths and devises the residue and remainder of his estate “ as referred to in the second provision of this Will ” to his three sons, naming them, share and share alike. The fourth paragraph names the three sons executors and trustees to serve without bond.

The second paragraph is concerned with the contingency of the testator predeceasing his wife. ■ A reading of it, without reference to the other provisions in the will, discloses no bequest or devise of the corpus of the remainder of the estate.

The third paragraph is concerned with the contingency of the wife predeceasing the testator. It pointedly refers to the residue of the estate as the property “ referred to in the second provision of this Will.” It contains an express bequest and devise of the residue and remainder of the estate to the three sons.

The testator died May 27, 1932, owning only personal property. The widow and three sons survived him. The contingency which occurred, therefore, was that which was the subject of partial testamentary expression in the second paragraph. The contingency which did not occur was that covered by the third paragraph.

Henry, a son, predeceased his mother and died intestate January 11, 1939. The widow died January 11, 1940. She enjoyed the life estate under the testator’s will for a period of nearly eight years. No construction of the will was sought during her lifetime and she did not assume to exercise any rights in the corpus of the estate.

In construing a will, courts endeavor to ascertain and give effect to. the intention of the testator. They may only do so in so far as that intention is manifested in the testament, expressly or by implication. A court may not give effect to a supposed intention of a testator which finds no expression in a will; but a court may give effect to an intention or purpose, indicated by implication, where the express language of the entire will manifests such an intention or purpose. The rule is easy of statement but its application is frequently provocative of controversy.

The authoritative cases here pertinent confirm the notion that a litigated will has no twin. They warrant, however, a further statement of principle. When a will does not contain a mention of particular property, or of an estate, or an express bequest or devise of such property or estate, in one contingency, then such property or estate may not be, in another contingency, the subject of a bequest or devise by implication through the medium of a construction of the testament. Especially so if disinherison would result and there is no express language indicating an intent to disinherit. If, however, the property or estate claimed to be bequeathed or devised by implication, in a contingency which has occurred, has been made the subject of an express bequest or devise in another contingency, which did not occur, then effect may be given to such bequest or devise by implication, in the contingency which did occur, if a reading of the entire will makes manifest that such was the intention of the testator. When courts have refused to sustain a bequest or devise by implication, the will did not mention the property or estate, or did not direct in any specified contingency any disposition of it, and thus it did not furnish a basis in language of the testator from which to imply such an intent. Typical of the cases which sustain a bequest or devise by implication is Masterson v. Townshend (123 N. Y. 458, 462). An extreme example of those which do not is Dreyer v. Reisman (202 N. Y. 476), based on typical cases cited therein. These typical cases give effect to the distinction above stated.

In the Masterson case, omitting detail not pertinent, the testator provided for two contingencies. He created a life estate, of a specified yield, for his widow in certain property but made no express disposition of the corpus of the residuary estate, which consisted of real property. He then provided that in the event the real property was sold, which sale he authorized, a specified sum of money be paid each year from the proceeds to the widow; and further provided that the balance of the proceeds or corpus go to his named brother. The property was never sold. After the widow’s trust ended it was contended that there was a devise by implication to the brother of the residue of the estate. The provisions relating to the first contingency, which eventuated, did not contain a devise of the residue. The language relating to the second contingency, which did not eventuate, contained an express bequest to the brother of the corpus or proceeds of the sale of the real property. It was held under the first contingency, because of the language in the second contingency, that a bequest or devise by implication was properly given effect.

In Dreyer v. Reisman (supra) there was a bequest and devise to specified children, without any mention of the word “ property.” In a later sentence there was a reference to real estate, if any, owned by the testator, which was to be sold privately, and if not thus salable, to be sold at public auction. Nowhere in the will was there a mention of what was to pass under the will. It also appeared that if effect were given to a devise by implication disinherison would result. The court held there that there could be no devise by implication.

A reading of the entire Seiner will plainly reveals that the testator’s primary intention was to provide for his widow by devoting the entire income of his property to that purpose, without giving her any of the corpus. It also clearly discloses a secondary purpose — to give his property, if his wife did not need or ceased to need support therefrom, to his three sons. Carrying out such a twofold testamentary intent involves no disinherison. This view is based on express language of the testator. In addition, the testator affirmatively revealed a desire not to die intestate as to any of his property. This is shown in the above-quoted sentence from the second paragraph of the will, which, in awkward language, gives his reason why he did not wish his wife to have any of the corpus of the estate. That expressed intention would be frustrated, if it be held that he died intestate as to the residue and remainder of his estate, because it would then follow that his widow took one-third of the corpus of the residue, under the contingency that ensued — that of the testator predeceasing the wife. During her eight years of enjoyment of the income of the estate the widow never asserted ownership or dominion over one-third of the corpus, which conduct was in accord with the expressed testamentary intent of her husband. Moreover, we have the language above quoted from the third paragraph which identifies the corpus which is to go to the three sons as being the same property as is involved in the second paragraph of the will. And in the second paragraph of the will the testator in fact devised and bequeathed the residue of his estate to the three sons, although it was for a limited purpose, to hold in trust for the benefit of the widow.

These provisions thus read and construed comply with the rale in Post v. Hover (33 N. Y. 593, 599). It is, “ to devise an estate by implication, there must be such a strong probability of an intention to give one, that the contrary cannot be supposed.” Here there is more than a “ strong probability.” There is language of the testator which irresistibly reveals such an intention — that the three sons, after the widow died, receive the entire estate and that the wife at no time receive any portion of the corpus. The factual situation is stronger than in the Masterson case, the principle of which is determinative. Invoking that principle, when the first contingency occurred, a bequest by implication of the corpus may be sustained in accord with the express bequest of the testator in the second contingency, which did not occur.

This is not making a new will for the testator. It is merely giving effect to testamentary intention limited to language within the four corners of the will. It is a sustaining of a bequest by implication in exact accord with an express bequest in the will, thus giving effect to the. expressed general testamentary plan and purpose of the testator.

Laymen would have no difficulty in sustaining a bequest by implication from the language in which the decedent expressed his testamentary intent. Courts should not, by self-imposed impotence, not required by the precedents, be less efficacious. They should give effect to plainly discernible, though ineptly expressed, testamentary intent.

The decree should be reversed on the law and the facts, with costs to appellant, payable out of the estate, in so far as it held that the testator died intestate as to the corpus of the residue of the estate, and the matter remitted to the Surrogate’s Court to enter a decree that the testator, by implication, bequeathed to his three sons the corpus of the remainder of the estate.

Hagarty, Johnston and Abel, JJ., concur; Lazansky, P. J., dissents and votes to affirm the decreé, with opinion.