This is an appeal from the Supreme Court, Appellate Division, Second Department brought before the Court of Appeals of New York. First, an application was filed by LK, as executrix of the last will and testament of DFK, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. Thereafter, the Surrogate of Kings County issued an order confirming the report of the appraiser. This was subsequently affirmed in an order by the Appellate Division of the Supreme Court for the Second Department. Consequently, the applicant appealed. The instant Court affirmed.
DFK died in the city of Brooklyn, leaving a last will and testament. On 10 September 1895, the will was admitted to probate. Only LK, the appellant, qualified as executrix thereof. Subsequently, she petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.
The will of the decedent, so far as material to the questions involved in this appeal, provides as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situated, unto my three sisters, MK, AK, and LK.’
MK died prior to the death of the testator.
The appraiser fixed the tax upon the theory that the testator died intestate as to one-third of his estate, by reason of the predecease of MK; that AK and LK each took one-third of MK’s share as next of kin; and that the AK one-third passed to nine nephews and nieces of the decedent, as their share of the estate which was undisposed of by the will.
A Nassau County Family Lawyer said that in 10 December 1895, the appraiser filed his report with the surrogate. On that same day, the surrogate made an order confirming it, and assessed the tax at the amount mentioned therein.
Thereafter, an appeal was taken to the surrogate, and the former order and report of the appraiser were confirmed. Thereafter, an appeal was taken to the Appellate Division of the Supreme Court, where the latter order was affirmed.
Here, there are no question as to the facts or the procedure. The sole question involved relates to the construction of the testator’s will, that is, whether or not the bequest was to the testator’s sisters jointly, or whether they took the property as tenants in common.
Certainly, upon the death of one of the legatees before the decease of the testator, the legacy lapsed if it was to the legatees as tenants in common. This is not denied by either party. The lower courts have held that the legatees took as tenants in common, and hence that, as to one-third of the testator’s estate, he died intestate.
According to the appellant, the legatees took jointly, and, if not, that the bequest was to the sisters of the decedent as a class, and consequently there was no lapse in the disposition by reason of the death of one of the legatees.
The instant court disagreed. The appellant’s contention cannot be sustained.
Indeed, at common law, such a bequest would have constituted the legatees joint tenants. However, under the statutes of this state, the rule is clearly otherwise. The Revised Statutes, 1 Rev. St. pt. 2, c. 1, tit. 2, art. 1, § 44, provide that: ‘every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy.’ This statute applies to personal as well as real estate as discussed in the cases of Everitt v. Everitt, 29 N. Y. 39, 72; Bliven v. Seymour, 88 N. Y. 469, 478; Van Brunt v. Van Brunt, 111 N. Y. 178, 187,19 N. E. 60; and Mills v. Husson, 140 N. Y. 99, 104,35 N. E. 422.
Also, the bequest in this case was not to a class.
In legal contemplation, as discussed in 1 Jarm. Wills (5th Ed.) 269, a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number. Here, the number of persons was certain at the time of the gift, the share each was to receive was also certain, was in no way dependent for its amount upon the number who should survive, and, therefore, this case is not within the principle invoked. The canon of interpretation to the effect that if there are two modes of interpreting a will, that which will prevent total or partial intestacy is to be preferred finds no application. The statutes and decisions are controlling and cannot be changed or rendered nugatory by any mere rule of construction.
The decision of the appellate division was correct, and should be affirmed.
Accordingly, the judgment was affirmed, with costs.