Opinion
November 16, 1961
Appeal by the administratrix with the will annexed from a decree of the Surrogate's Court, Chenango County, adjudging that the devise and bequest of the residuary estate of the testatrix lapsed by reason of the prior death of the named beneficiary and passed to her distributees as in the case of intestacy. Louie Leach died on January 11, 1956 leaving a last will and testament dated October 19, 1951 which was admitted to probate on June 25, 1956. Its NINTH paragraph read in part as follows: "All the rest, residue and remainder of my property both real and personal, I give, devise and bequeath to Myrtic L. Benedict and her heirs forever." Mrs. Benedict, a cousin of the deceased, died on April 22, 1953 leaving her surviving two children as her sole distributees. The deceased was survived by a nephew and three nieces who constituted her distributees. The nephew has instituted this proceeding seeking a construction of the words "and her heirs forever" used in the above-quoted paragraph of the will. After a hearing, the Surrogate determined that they were words of limitation and that by reason of the death of Mrs. Benedict prior to that of the testatrix, the devise and legacy lapsed and passed to the distributees of the testatrix as property undisposed of by the will. Appellant, who is also one of the distributees of the deceased devisee and legatee, does not argue that, in the absence of a clear intent to the contrary, the words "and her heirs forever" operate as words of limitation and not of substitution. ( Matter of Wells, 113 N.Y. 396; Matter of Tamargo, 220 N.Y. 225; Matter of Thompson, 279 N.Y. 131; Matter of Barrett, 141 Misc. 637.) Nor does she seriously urge that had the document been drafted by a lawyer who employed the term of art, it should not be construed as the Surrogate has determined. Her contention is that the instrument was prepared by a layman, unskilled in will draftsmanship and unfamiliar with the technical significance of the words employed, and that the conjunctive "and" was used through ignorance or artlessness to express a testamentary disposition which the testatrix did not intend. In support of her position, she points to the will itself which was typewritten on a stationer's form, to the fact that no lawyer has come forth to admit the preparation of the paper and none has been discovered who drew it or supervised its execution and to indications to be found in the instrument itself — in particular the position of the residuary clause and the mingling with it in the same paragraph of specific bequests of personal effects and cash. It is true, also, that the will does contain expressions such as a lawyer might use as, for example, the appropriate use of "bequeath" and "devise" as words of gift. At the hearing before the Surrogate, appellant offered extraneous evidence bearing on the subject of the identity of the person who prepared it which the Surrogate rejected on the ground that the words "and her heirs forever" used by the testatrix were not ambiguous. We think this was error. In endeavoring to learn what the testatrix intended by the use of the technical language, evidence which tended to show that the words were used in the will by a layman without discriminating knowledge and understanding of their recognized meaning was relevant. ( Overheiser v. Lackey, 207 N.Y. 229; Matter of Winburn, 265 N.Y. 366, 375, motion for reargument denied 266 N.Y. 501; Matter of Snell, 173 Misc. 282; Matter of Barrett, supra.) Decree reversed, on the law and the facts, and the matter remitted to the Surrogate's Court for proceedings not inconsistent with this decision, with costs to abide the event. Bergan, P.J., Coon, Gibson, Herlihy and Taylor, JJ., concur.