Dwight v. Fancher (217 A.D. 377, 1926)

Van Kirk, J.

The action is brought for construction of the will of Emily A. Watson. The controversy arises from the tenth, the residuary, clause of the will, which is:

“ Tenth. All the rest, residue and remainder of my property, both real and personal, of whatever kind or nature and wherever situate, as well that which I may hereafter acquire as that which I now possess, I give, devise and bequeath to the United States Trust Company of New York, in trust, however, to divide the same into as many shares or portions as there may be children of my cousin, Harvey A. Dwight, and grandchildren of my cousin, George W. Pratt, surviving at the time of my death, and to invest and keep invested one such share or portion for the benefit of each child of my said cousin, Harvey A. Dwight, and each grandchild of my said cousin, George W. Pratt, then surviving, and to pay over the income and profits therefrom to the child or grandchild for whose benefit such fund is so held, during Ms or her natural life, and upon his or her death to pay over and deliver the principal of the fund with all accumulated income to his or her issue, per stirpes, and in default of such issue, I direct that the same be divided equally between said surviving children and grandchildren, and the issue of any who may have.died, per stirpes.” -

Henry W. Simpson wat; called as a witness for plaintiffs. He drew the present will and had drawn four previous wills for this testatrix. He was a witness to each of the wills. He was allowed to testify that he had seen the four previous.wills; three drawn before 1910 and two thereafter; that the residuary clause in each of these wills was identical. Defendants moved to strike out this testimony and it was stricken out, but it is printed in the record. We think that Mr. Simpson was a competent witness. When the testatrix requested him to become a witness to the will, she waived the privilege and tíie confidential relation; also that the contents of the prior wills was admissible as bearing upon the intent of the testatrix. (Matter of Miner, 146 N. Y. 121.) We may, therefore, consider his testimony as being in the case. When three of the prior wills were made Harvey L. Dwight was living. He was one of the children of Harvey A. Dwight. The plaintiffs are the children of Harvey L. Dwight, the grandchildren of Harvey A. The defendants have succeeded in their contention that, since Harvey L. did not survive the testatrix, his issue took no share in the estate.

The strongest argument for plaintiffs seems to be that, if the testatrix had died after making the 1907 will and before 1910, when Harvey L. Dwight died, a share would have been set aside for Harvey L. and at his death his issue would have taken that share; no question would then have arisen as to the intent of the testatrix in this respect; she made the succeeding wills, including the one in question here, made in 1915, supposing that Harvey L. was living and her intent remains the same; when she-made this will and when she died she intended and believed Harvey L. Dwight was one of her legatees; after he died in 1910 no change was made in the wording of the residuary clause; the same conclusion is reached when the other provisions of this will are read; she throughout her will planned to give by families and left generally her bequests to be distributed per stirpes; she intended to give largely to the descendants of the men who had been copartners with her father in the business in which he was engaged when the foundation of his fortune was laid; she did not think or intend that a