Opinion
September, 1922.
Guerney Guerney, for petitioner.
Richard J. Morrison, special guardian.
A life estate has fallen in and because of the ambiguity of the will a question of construction is presented to the surrogate. The clause for consideration reads as follows: "At the death of my daughter Anna, if she survive me, I give and bequeath the share held in trust for her to my children then living (except the issue of said Anna) in equal shares, per stirpes and not per capita." Anna is dead. Her issue we cannot, by the undisputed terms of the will, be concerned with, but the question is whether all of such remainder goes to the only surviving child of the testator, a son, Walden B. Striker, or whether the various issue of the other deceased sons and daughters share per stirpes with him.
It is a nice question. Here is language which is neither explicit nor free from doubt. The court is, therefore, charged with the duty of discovering the intent of the testator as collected from the whole will and applying the same to the doubtful provisions. Goebel v. Wolf, 113 N.Y. 405, 412.
Searching for light within the four corners of the document we find that throughout the will the word "children" is used at all times in its primary sense but that clearly and unequivocally the testator's intent is always to provide equally (excepting for Anna and her issue) for his children and their issue.
Applying such intent so gleaned, and it is a reasonable and natural intent, to the clause in question, we perceive at once the lapsus calami. Supplying the obvious omission, using the phraseology elsewhere employed by the draftsman and reading as follows: "At the death of my daughter, Anna, if she survive me, I give and bequeath the share held in trust for her to my children then living, and the issue then living of my children then dead (except the issue of said Anna), in equal shares per stirpes and not per capita," we have a clear and logical clause harmonious within itself and in relation to the rest of the document and reflecting the clear intent of the testator as manifested throughout the will. There is ample authority to sustain such method of supplying an omission to aid construction. Walter v. Ham, 68 A.D. 381, 388; Phillips v. Davies, 92 N.Y. 199, 204; Roe v. Vignut, 117 id. 204. Thus the issue of the deceased sons and daughter share per stirpes with the only surviving child, the son Walden B. Striker, and thus is the intent of the testator carried out. The original affidavit of services of the special guardian is not with the papers. Supply it and submit a decree construing the will in accordance with this opinion.
Decreed accordingly.