Christian Zabriskie, for petitioner.
John H. Cole, for respondent.
In the probate of the will of the decedent herein the effect of the disposition of the residuary estate has been placed in issue, and the court is asked, under the provisions of section 2624 of the Code of Civil Procedure, to determine the question thus raised. The testator makes a number of pecuniary gifts to various relatives of his own and of his deceased wife's blood. After creating certain specific legacies the will, by the twentieth clause, directs the residuary estate "to be divided on a percentage basis in proportion to the bequests of all heirs herein named in this will and testament." The twenty-first clause provides for a proportionate "money" abatement in the event of there being insufficient funds to pay all bequests; and the next clause contains a provision that, in the event of the estate exceeding the amount of the bequests, the balance remaining should be paid to "all heirs herein named" proportionately. The question raised is whether the beneficiaries of the residuum are confined to such legatees as are heirs of the testator or whether all of the legatees should not participate therein. In testamentary construction the word "heirs" is not always given its technical meaning. To the layman it may have, and indeed very often has, an entirely different signification, and whatever that signification may be it should, if possible, be given effect. In seeking to ascertain the meaning in which the expression is used, the intention of the testator must be sought both from the context of the will and from the circumstances which surrounded the decedent. Armstrong v. Galusha, 43 A.D. 248. The application of this rule has resulted in the court holding that the word in question was used to designate next of kin (Lawton v. Corlies, 127 N.Y. 100); and it has also been held to denote legatees. 29 Am. Eng. Ency. of Law, 348. In the present case it appears that the will is holographic, that the testator was a layman and, therefore, presumably ignorant of legal phraseology, and that the estate consists entirely of personal property. It would also seem that the decedent was on very affectionate terms with the relatives of his wife who are the objects of his bounty. From a careful study of the context of the will, in conjunction with these extrinsic facts, it is evident that the testator, in giving his residuary estate to the "heirs" mentioned in the will, had in mind all the beneficiaries whom he had made recipients of gifts of money, and did not intend to discriminate against those who were related to his wife. The manner in which he provides for abatement among all of the legatees on the one hand, and for the disposition of any excess among the "heirs herein" on the other, intensifies the conclusion that his testamentary scheme was to have all of the pecuniary legatees participate in the residue, and that the word "heirs" was used merely in one of its popular senses, as meaning beneficiaries under a will. Submit decree in accordance with this decision, admitting the will to probate.