In re Wheeler , 52 N.Y.S. 943 ( 1898 )

Landon, J.:

The will of the testatrix, after various devises and bequests, contains the following:

“ Tenth. I give, devise and bequeath to the Home Missionary Society all the residue and remainder of my said estate, excepting my household furniture and wearing apparel, to have and to hold the same, to-the said Home Missionary Society and their respective •successors. I mean the Methodist Home Missionary Society.”

The appellant, “ The Missionary Society of the Methodist- Episcopal Church,” although not cited, voluntarily appeared before the surrogate upon the proceedings for the,probate of the will, pursuant to section 2017 of the Code, and alleged itself to be the beneficiary-.named in the 10th clause,, and asked to have the surrogate so find. The executor and other parties to the proceeding denied such allegation, and put in. issue.the 10th clause," alleging it to be invalid because the legatee therein named does not exist The will" relates to both real and personal estate. Section 2624 of the Code provides that “if a party expressly puts in issue, before the surrogate, the validity, construction or effect of any disposition of personal property contained in the will of a resident of the State, executed within the State, the surrogate must determine the question upon rendering a decree, unless the decree refuses to admit the will to probate,” etc. The surrogate assumed jurisdiction to pass upon the validity of the 10th clause, and, after the testimony was closed, which, among other things, bore upon the question of the identity of the appellant as the beneficiary named in the 10th clause, admitted the will to probate, and also adjudged that in and by said 10th clause the testatrix did not intend to make, and- did not make, any devise or bequest to the appellant, “ The Missionary Society of the Methodist Episcopal Church,” and that said devise and bequest fails for uncertainty of the legatee, “ the legatee therein named'liavingbeen incapable of legally taking because the legatee therein named does not exist.”

As the Missionary Society of the Methodist Episcopal Church is the sole appellant, and as, in appearing before the surrogate and asking to be adjudged to be the beneficiary named in the 10th clause, it thereby submitted to the jurisdiction of the surrogate and made it necessary for him to determine its identity as incident to recognizing it and its right to appear and participate in the proceeding, and as the respondents tendered the issue that the 10th clause had no effect in favor of the appellant, the part of the decree appealed from is an adjudication that the appellant takes nothing under the 10th clause of the will, and thus determines the effect and validity of that clause so far, at least, as it affects personal property, as between the appellant and the other parties to the decree. (Code Civ. Proc. §§ 2617, 2624; Matter of Vowers, 113 N. Y. 569.)

If chapter 701 of the Laws of 1893, which' provides that “ no gift, grant, bequest or devise to religious, educational, charitable or benevolent uses, which shall, in other respects, be valid under the laws of this state, shall or b.e deemed invalid by reason of theiudefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same,” has any relevancy, it is not perceived that it has it with respect to the appellant, which is a corporation'authorized to take such a' devise and bequest, is a body neither indefinite nor uncertain as to its corporate personality, or the persons composing its membership. If it should show itself to be the beneficiary designated in the 10th clause, it would not need this statute to enable it to obtain the devise and bequest. If it were an unincorporated society, it might then be a pertinent inquiry whether its members were embraced within “ the indefiniteness or uncertainty of the persons ” mentioned in the statute.

■We have examined the evidence adduced before the surrogate touching the question of the appellant’s identity as the object of thq testatrix’s bounty. Our conclusion is that the. surrogate’s finding in that respect should be upheld unless the testimony of Pauline Ross, and similar testimony given by others over the appellant’s objection, was improperly admitted. Pauline Ross testified that the testatrix, about the time she made this will, in speaking of what she intended to do with her property, said that “ she had remembered. the Free Methodist Church of Saratoga Springs, and the Home Missionary Society of the Free Methodist Church of Saratoga Springs in her will.” -Other witnesses testified to similar declarations of the testatrix, the appellant’s objection being overruled.

We think this evidence was admissible. Upon the face of the 10th clause there is no ambiguity. There is no difficulty in inter-' preting it. It is a plain devise and bequest of the residue of the testatrix’s estate to the beneficiary therein named. The difficulty arises -because the appellant comes into court and alleges that it is the beneficiary therein named, and the other parties in interest deny - it. Ho-party is known or appeared, or-was cited, bearing the identical name mentioned in the 10th clause, and the evidence objected to, and also.other evidence, was given tending to show that possibly the unincorporated Home Missionary Society of the Free Methodist Church of Saratoga Springs was the beneficiary intended by the testatrix. Thus a latent ambiguity was developed which could not be solved except by recourse to extrinsic evidence. And such recourse was proper. (Lefevre v. Lefevre, 59 N. Y. 440.)

The appellant assents to this proposition, but urges that such recourse must be limited- to facts which show to the court the situation and standpoint of the testatrix, and does not admit of her decíarations expressive of her intention. If the question were upon the construction of a dispositive provision in her will, the appellant’s contention should prevail, otherwise the written will might yield to her unwritten declarations. (Matter of Keleman, 126 N. Y. 73; Williams v. Freeman, 83 id. 569 ; Kelly v. Kelly, 61 id. 51; White v. Hicks, 33 id. 383.) But where the question is, whom has the testatrix named, and the claimant has, by extrinsic evidence, brought that question to depend upon whom she intended to name, then it is manifest that her declaration of her intention, if consistent with the name in the will, is light itself from the very source of intention, and is, therefore, admissible. The strength or clearness of that light will, of course, be affected by the circumstances accompanying the declaration. If we can infer her intention from her acts and thus reach it by indirection, clearly we may gather it from her act of speech which directly expresses it. . And so, we think, are the authorities, although it may be admitted that if they were more explicit, it would not be necessary to discuss the principle upon which the admissibility rests. Mann v. Executors of Mann, 1 Johns. Ch. 231; Doe v. Roe, 1 Wend. 541; Ryerss v. Wheeler, 22 id. 148; Trustees v. Colgrove, 4 Hun, 362; Tillotson v. Race, 22 N. Y. 122 St. Luke's Home v. Association for Indigent Females, 52 id. 200 ; Ex parte Hornby, 3 Bradf. 420.) Moreover, it is not quite accurate to say that we are construing a will or interpreting its terms when the single question before us is whether the claimant has established its identity with the beneficiary named in it. The appellant thus raises a question which, if. recourse be had only to the will itself, must be settled against it, for its name and the name used in the will are not found to be identical upon strict comparison. But there is some resemblance between the names, and it may be true that the testatrix thus named the claimant, and if we can be sure that she intended to name it in using the name in the will, we. ought so to hold, since thus effect will be given to her intention as expressed in the will itself. And since we are seeking to disjiel a latent ambigú-. ity lurking in the name of the beneficiary, if she herself lias', declared whom she thereby named, why should we not accept that declaration to the extent that we believe it to be true ? The rule of exclusion of oral declarations of the testator’s intentions in the case of the construction of the dispositive provisions of the will rests upon the sound basis that, as the will must be in writing, the writing must declare the intention, otherwise an oral will might replace the written one; but in case of an equivocation in writing the name of the beneficiary, the fact is that the testatrix has written the name explicitly enough according to her understanding of it, but as we are not possessed of her exact understanding, we fail to recognize the person thus named. If, now, we accept the testatrix’s oral designation of the person named, we do not replace the beneficiary ' written-in the will by another not written therein, but we now read the written name.in the -light of the testatrix’s identification of the person thus named.

■ In the language of Mr. Oroswell in his -note to section 291 of Greenleaf on Evidence (15th ed.): “It is not-easy., however, to perceive why extrinsic evidence of the testator’s declared intentions of beneficence toward an individual is not as admissible, as evidence is, that he used to speak,of him or address him as his son, or godson,- or adopted child.”

Mr. Surrogate Bradford in Ex parte Hornby (supra;), said: “ The distinction that- permits evidence of facts, but -not of declarations, acts and statements of the testator, is sustained in the English cases * * * but I am not aware that it has been adopted as the law of this State.”

If this view is correct, the appellant has no interest in the allow-' anee of costs made by the surrogate to' the guardians ad litem of infant parties, and we do not consider it. -

The decree of the surrogate should be affirmed, with costs.

All concurred.

Decree affirmed, with costs.