The problem here concerns the language contained in the two paragraphs which constitute *273article Third of the last will and testament of Bertha B. Warren, deceased. In the first paragraph thereof the testatrix made an absolute and unqualified devise of her property to Harry T. Gill and he was also designated as the sole executor. The language was unusual in that it provided that his personal receipt was sufficient for the discharge of all interest passing hereunder. The will, apparently drawn by an attorney— Mr. Gill was in no way associated with its draftsmanship — in the second paragraph of the article stated that her property was to be received and held and distributed in accordance with a letter of instructions accompanying the will and to carry out her wishes she delegated to Gill all necessary powers, both discretionary and otherwise.
The will was dated June 25, 1951, and as a sequela thereof she addressed a letter dated April 26, 1955, three years after the making of the will, in which she stated that Gill had power to dispose of anything that she owned after funeral expenses and Masses and stated, “ I would like the following friends remembered.” (Emphasis supplied.)
There are two pertinent observations from this letter. First, the underscored words “ would like ” have a precatory meaning and second, the will makes no mention of the masses referred to in her letter. Mr. Gill in his accounting and under Schedule G made a full disclosure not only of the letter of instructions mentioned above but also personal memoranda which he had made on occasions of his visits to the decedent and he further signified that it was his intention to honor each of the requests of the decedent.
The majority have determined that the second paragraph of article Third created a trust relationship and there being no designated beneficiary, it followed that the decedent died intestate which, as mentioned in the opinion of the Surrogate, is repugnant to the rules of construction. Intestacy is never favored when a fair interpretation of the wording of a will permits a contrary finding. If the wording of the second paragraph of this will could be deemed sufficient to overcome the strong language of the first paragraph of absolute devise, that fact in and of itself is not controlling but under the circumstances must be considered with the letter and other memoranda in order to determine the intent of the testatrix, always cognizant that the law strongly favors sustaining a will. (Eadcox v. Cody, 213 N. Y. 570, 572-573.) In Matter of Fabbri, 2 N Y 2d 236, the court said (p. 240): “ This intent, as we have often said, must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in *274view of all the facts and circumstances under which the provisions of the will were framed. (Collister v. Fassitt, 163 N. Y. 281; Robinson v. Martin, 200 N. Y. 159, 164; Williams v. Jones, 166 N. Y. 522, 533; March v. March, 186 N. Y. 99, 103.) * * *
As this court pointed out in an early opinion: ‘ If we can see that the inapt, or careless, use of language by the testator has created the difficulty in ascertaining his intention, but, nevertheless, feel certain as to what he meant, from reading the whole instrument in connection with the clause in question, we may subordinate the language to that meaning. ’ (Matter of Miner, 146 N. Y. 121, 130-131.) ” It is abundantly clear that this testatrix had no intentions of dying intestate.
Here we have language which admittedly constituted an absolute gift followed in the same article by words which did not disclose a clear and unequivocal intent to cut down the gift. Under such circumstances the courts favor giving effect to the absolute gift. (Matter of Hayes, 263 N. Y. 219, 226.) In Clarke v. Leupp (88 N. Y. 228, 230-231) the court said: “We are of opinion that the discretionary power given to the widow to retain or dispose of the property for the benefit of herself and children was not intended by the testator to limit or cut down the prior absolute gift. These words are but a mere expression of the testator’s wish that in the event of his death, his widow should make such use or disposition of the property devised as would in her judgment best provide for herself and her children.
“It is well settled by a long succession of well-considered cases, that when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words, inferential in their intent.”
It serves little purpose to cite precedent as each case, in attempting to ascertain the intention of the testatrix, is governed by the wording of the particular will therein. It is untenable from the facts here present to place such a strained interpretation on a paragraph following a direct devise that a trust was thereafter created, the result being that by operation of law the testatrix died intestate. There was no claim of fraud, deceit, misrepresentation or other disabilities which, if present, would require such drastic action. Under the circumstances, considering the letter and memoranda, the wording of the will does not mandate a finding that the testatrix intended to create a trust of any description. It appears to me that rules of law are unnecessarily being applied against the validity of this will when it is legally feasible to apply rules in favor of sustaining the will.
*275I vote to affirm the order of the Surrogate.
Bergan, P. J., and Reynolds, J., concur with Taylor, J.; Herlihy, J., dissents, in a memorandum, and votes to affirm.
Decree reversed, on the law and the facts, and the matter remitted to the Surrogate’s Court of Fulton County for proceedings not inconsistent with the opinion herein, with costs payable from the estate to parties filing briefs. The matter of allowances on this appeal, if any, is remitted to the Surrogate for determination.