Matthew Gallavan, Appellant, v. James Gallavan and Kate Gallavan, Respondents, Impleaded with Others

Matthew Gallavan, Appellant, v. James Gallavan and Kate Gallavan, Respondents, Impleaded with Others. Devises void for indefiniteness of description — they pass under a residuary clause of the will. Where a testator owning a single piece of real estate attempts to devise three lots, constituting about two-thirds of such real estate, one to each one of three of his children, naming them, which specific devises fail-because of the indefiniteness of the descriptions, the lapsed devises pass under a general residuary clause of the will, by which the testator disposes of “ all the rest, residue and remainder of my property, both real and personal.” Appeal by the plaintiff, Matthew Gallavan, from an interlocutory judgment óf the Supreme Court in favor of the defendants, James Gallavan and another, entered in the office of the clerk of the county of Chemung on the 15th day of June, 1900, upon the decision of the court , rendered after a trial at the Chemung Special Term sustaining a demurrer to the complaint. . The action is in partition. The complaint alleges a title in the parties as heirs at law through failure of a testator’s will to devise ' the lands sought to be partitioned. The question brought up by, the demurrer is this: Where the devise of realty for any reason fails, and there is a general residuary clause in the will, does the realty attempted to be devised fall to the residuary devisee, or does :it go to the heirs at law ? The testator in this case was the owner of a plot of land about an ;acre in extent. The complaint alleges that the testator, at the time •of his decease, had no other real estate; that the testator intended to devise three lots, each fifty feet front, one to each of three of his •children, naming them; that if such specific devises had been ■effectual, there would have remained about one-third of the plot which would have gone to the residuary devisees under the general residuary clause of the will; that the specific devise of the three lots of fifty feet front each was ineffectual, and failed for the reason that the description was too indefinite and uncertain; that ■neither of the three lots could be located ; that because of the failure of the specific devises, the part of the plot not covered by these was also impossible to locate, and, therefore, the whole plot, undiTided, descended to the heirs at law. The language of the residuary clause is as follows: “ Seventh and lastly: I give, bequeath and devise to my son, James Gallavan, and my daughter, Kate Gallavan, all the rest, residue and remainder of my property, both real and personal, in fee, forever, in equal shares, share and share alike.” The demurrer admits all the facts alleged in the complaint, and if the land mentioned descended to the heirs at law, the complaint declares a good cause of action. If the land, however, under the terms of the will goes to the residuary devisees, the complaint does not state a cause of action, and the demurrer was properly sustained. Mortimer L. Sullivan, for the appellant. J. P. Eustace, for the respondents. [MAJORITY — Kellogg, J.:] Kellogg, J.: The contention of the appellant is that the land descended to the heirs because the intention of the testator, as expressed in the will, is that a portion of the land should not go to the residuary devisees, and that is made manifest by the testators devise of a portion of it to each of three other children; that the failure of the devise because of inability to locate the lots does not operate to affect the intention, and this intention must be controlling, to the extent, at least, of preventing the land from passing, by the residuary clause of the will, to the residuary devisees. This contention would be undoubtedly sound if the principles prevailing under the common law were now in this State recognized as controlling. But, I think, the . courts have declared a different principle, basing it upon the terms of the Revised Statutes which made a will speak as of the date of death of the testator, rather than as of the date of the execution of the will. In Cruikshank v. Home for the Friendless (113 N. Y. 354) Finch, J., says: “ Among the numerous reasons which have been assigned for the common-law rule, some of which were always artificial and unsatisfactory, the principal and most sensible one is well stated by Learned, J., in Hillis v. Hillis (16 Hun, 76) and by Grover, J., in Youngs v. Youngs (45 N. Y. 254). * * * This reason wholly disappeared when our statute made the will speak from the testator's death, both as to real and personal property. ";1" * As I read the case of Youngs v. Youngs the lapsed devise was carried1 to the residue upon two grounds; one that the rule as to lapsed devises-had become the same as to lapsed legacies. * * * I think that must be regarded as the correct rule "applicable to a general residuary clause which is not narrowed or restricted by the terms of its-own construction. The" testator in the present case clearly expressed his intention to pass all his property, and that nothing additional should pass to his heirs beyond what' he had effectually given them.” In Matter of Allen (151 N. Y. 243) the case last referred to(Cruikshank v. Home for the Friendless) was cited and approved and the court said : “ The rule is now the same as respects devises, and bequests, that- any part of the estate not legally disposed of ■becomes a part of the residuary estate and passes under a residuary-clause embracing both real and personal property in the absence of a contrary intention found in the will.” In Moffett v. Elmendorf (152 N. Y. 485) the court again said r “ The lapsed devises went into the residue, as the common-law rule to the contrary has been done away with by. statute, and there is-no longer any difference as to the operation- of a residuary clause between lapsed devises and lapsed legacies.” The rule as to legacies is stated in Riker v. Cornwell (113 N. Y. 124) and no distinction is made between lapsed and. void legacies. Speaking of the general residuary clause in a will, the court says r “ It will include legacies which were originally void either because-the disposition was illegal or because, for any other reason, it was-impossible that it should take effect.” There is no solid ground for a distinction between lapsed devises-- and devises void because for any other reason they cannot be made-effectual, and precisely the same reasoning which carries the void legacy to the residuary legatee, takes also the void devise to the residuary devisee. The language of the residuary clause appearing in the will after making the specific devises mentioned, and which are shown to be ineffectual because of the indefinite description, “ all the rest, residue and remainder of my property, both real- and personal,” expresses no intent on the part of the testator to> limit or exclude from the residuum anything personal or real, anything whatever which for any reason might prove to he ineffectually disposed of. It expresses a clear intent on the part of the testator to make a full and complete disposition of his property, and a disherison of the heir at law is here very plainly declared. (Riker v. Cornwell, 113 N. Y. 124 ; Hulin v. Squires, 63 Hun, 352.) The interlocutory judgment sustaining the demurrer should be affirmed, with costs. All concurred. Interlocutory judgment affirmed, with costs.