Matter of Kimberly , 150 N.Y. 90 ( 1896 )

No question as to the facts or the procedure in this case arises upon this appeal. The sole question involved relates to the construction of the testator's will, and is whether the bequest was to the testator's sisters jointly, or whether they took the property as tenants in common. That upon the death of one of the legatees before the decease of the testator, the legacy lapsed if it was to the legatees as tenants in common, is not denied by either party. The courts below have held that the legatees took as tenants in common, and, hence, that as to one-third of the testator's estate, he died intestate.

The appellant's contention is that the legatees took jointly, and if not, that the bequest was to the sisters of the decedent as a class, and consequently there was no lapse in the disposition by reason of the death of one of the legatees. We do not think that contention can be sustained. While at common law such a bequest would have constituted the legatees joint tenants, yet, under the statutes of this state, the rule is clearly otherwise. The Revised Statutes provide that, "Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy." (§ 44, art. 1, tit. 2, ch. 1, pt. 2, R.S.) This statute applies to personal as well as real estate. (Everitt v.Everitt, 29 N.Y. 39, 72; Bliven v. Seymour, 88 N.Y. 469,478; Van Brunt v. Van Brunt, 111 N.Y. 178, 187; Mills v.Husson, 140 N.Y. 99, 104.)

Nor was the bequest in this case to a class. In legal contemplation, a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number. (1 Jarman on Wills [5th. ed], 269.) Here the number of persons was certain at the time of the gift, the share each was to receive was also certain, was in no way dependent for its amount upon the number who should survive, and, hence, this case is not within the principle invoked.

The canon of interpretation to the effect that if there are two modes of interpreting a will, that is to be preferred which will prevent total or partial intestacy, has no application here. The statutes and decisions are controlling, and cannot be changed or rendered nugatory by any mere rule of construction. The decision of the Appellate Division was correct, and should be affirmed.

The order should be affirmed, with costs.

All concur.

Order affirmed.