it was intended by the testatrix as an independent residuary bequest, and is fatally defective and inoperative as such for lack of the designation of a legatee, while the St. Joseph's Hospital and the proponent, who is the executor named in the paper, insist that it is a part of the bequest of that charitable institution. The court cannot be aided in this construction by parol evidence of any kind that is suggested in the brief of counsel, and no evidence was offered at the trial that would aid in determining the wishes of the testatrix. If it be conceded that the testatrix intended a residuary bequest to the hospital, and supposed that she had made one, it must still fail if the writing does not, when fairly construed, express her wishes. The cases which permit parol evidence to fix and determine the person or corporation intended by the use of an inaccurate or incomplete description (Matter of Wheeler, 32 App. Div. 183; Lefevre v. Lefevre, 59 N. Y. 434) do not go so far as to permit the supplying of a name for a legatee, wholly omitted from the will. Matter of Keleman, 126 N. Y. 73. The will was drawn by an illiterate draftsman and executed by an illiterate testatrix. We can gain little assistance by an examination of the other parts of the document. The line or dash which seems to separate the two parts of the paragraph is at the end of a line, and may have been placed there to fill a blank space, and a similar use of a dash to divide a sentence into two parts, in lieu of a comma or a semicolon, is found in another part of the will. The word "and" which follows the dash is commenced with a small letter. The whole paragraph is, indeed, a single sentence. The primary rule that must be borne in mind is that the intention of the testatrix is to be carried out, and this must be done, if necessary, even at the expense of rules of grammar, and in disregard of niceties of expression. Du Bois v. Ray, 35 N. Y. 162. It is quite apparent that she did not intend to leave any part of her estate undisposed of, and the strong inference is that St. Joseph's Hospital was desired by her to be the bene ficiary of her residuary personalty, and that the word "further" was used as indicating an addition to the gift to it. The insertion of the words "to it" after the word "bequeath," or the omission of the words " I further give and bequeath " would make the meaning clearer, but to determine the last part of the paragraph meaningless, when a meaning was plainly intended, would be to violate a rule of construction which is fundamental. The search for precedents made by counsel and by myself has not resulted in discovering any case precisely analogous to this. Indeed, when the inquiry is as to the meaning of an obscure sentence, little aid can be gained from adjudged cases, since it is difficult to classify errors. A somewhat similar case was Wickham v. Turner, 2 Dowl. & R. 398, decided in the Court of King's Bench in 1823. In that case the disputed devise was in the following words: "I give unto Henry Wickham a messuage or tenement, now in the possession of Wakeling. Item, I further give unto my nephew Henry Wickham half part of my garden, and 100L stock in the 4 per cent. Bank Annuities; I give further my yard, stables, cow-house, and all other outhouses in the said yard, my sister Martha Wickham to have the interest and profits during her natural life." It was held that the remainder in fee of the property devised to his sister Martha for life was well devised to his nephew Henry. The decree admitting the will to probate will also determine and adjudge that the disputed clause is to be construed and read as if the words "to said St. Joseph's Hospital" had been written in by the testatrix after the word "bequeath." Settle decision and decree on notice. Decreed accordingly. Matter of the Probate of the Alleged Last Will and Testament of MARIE J. NOON, Deceased. (Surrogate's Court, New York County, Filed May, 1900.) WILL-EXECUTED BY SIGNATURE IN ATTESTATION CLAUSE. Where a testatrix writes her name in a blank space, intentionally left by her in the beginning of the attestation clause of her will, and then reading "Subscribed by the testatrix," etc., and so writes in her name with the intention of executing the will, and thereupon requests friends to sign as attesting witnesses, and they thereupon sign, understanding that the signature so made was her subscription to the document which they attested, there is a sufficient execution of the will. Proceedings upon probate of a will. Frank M. Hardenbrook, for proponent; McEwan & McEwan and Denis A. Spellissy, for legatees; Joseph B. Braman, for contestant. THOMAS, S.-The decedent was about sixty years of age and had been a school teacher. The paper propounded for probate was entirely in her own handwriting and was produced by her on the evening of its execution, when she and the subscribing witnesses had met for the purpose of playing whist. At that time there were blank spaces in the final or testimonium clause for the date of execution and there was also a blank space in the attestation clause for the name of the testatrix, so that it then read: "Subscribed by the testatrix," etc. The decedent announced that she desired to execute the paper as her will. She thereupon filled in the date and wrote her name in the blank space in the attestation clause and thereupon declared it to be her will and requested her friends to sign as subscribing witnesses, which they did, all the signatures being affixed in the presence of the testatrix and by the witnesses. She then took the paper into her own possession and it was found among her effects after her decease. Objection is made that the writing of her name by the testatrix in the place described was not a subscription at the end of the instrument. I find as a fact that the decedent in writing her name in the presence of the witnesses intended to subscribe and execute the paper and give it force as her last will and testament, and that her signature so made was understood by the witnesses to be her subscription to the document which they attested. It was not intended by the decedent merely to fill in a gap in the attestation clause, but this gap was purposely left blank by her for the very purpose of being filled up by her signature in the final execution of the will. The case is, therefore, entirely similar to Matter of Acker, 5 Dem. 19, where like facts were determined to require the admission of the paper to probate. The signature of a testator in and forming a part of the attestation clause was held a good subscription of a will by the English Court of Probate in Goods of John Walker, 2 Swaby & Tristam, 354, and this case was cited and relied on in Sisters of Charity v. Kelly, 7 Hun, 290. In reversing the last-named case it was pointed out that the signature in that case had been made after the witnesses had signed, and the English case received implied approval. Sisters of Charity v. Kelly, 67 N. Y. 409, 414. The name written in the beginning of the attestation clause was at the physical end of the will within the rule commented on in Matter of Andrews, 162 N. Y. 1, since the attestation clause formed no necessary part of the will. The paper will, therefore, be admitted to probate. Probate decreed. Matter of the Probate of the Lost Will and Testament of MARY COSGROVE, Deceased. (Surrogate's Court, New York County, Filed May, 1900.) 1. LOST WILL ACCOUNTING FOR LOSS. Where the tenor and due execution of a will are properly proved and the executor, to whom it was delivered by the testatrix for safekeeping, testifies to continuous custody of it, the subsequent loss of it, his search therefor and his failure to find it, it is to be inferred that the will existed when the testatrix died or was fraudulently destroyed in her lifetime, and it therefore is entitled to probate. 2. SAME DECLARATIONS OF TESTATRIX REBUTTING PRESUMPTION OF REVO CATION. Declarations of the testatrix made about a week before her death, in which she spoke of the will as being in the custody of the executor, are competent to rebut any inference of revocation arising from the loss of the will. Proceedings upon probate of a will. Daniel J. Cushing, for proponent; George H. Starr, special guardian, for contestants. THOMAS, S.-The existence of the will of the testatrix, its due execution and its provisions, were clearly and distinctly proved in the manner required by law. It was also shown by two disinterested witnesses that the paper was, immediately after its execution, delivered by the decedent to the executor named in it, who was also the residuary legatee, for safe keeping, and there is no evidence that it ever subsequently came into her possession. On the contrary, the evidence is that, within about a week before her death, she spoke of the will being in the custody of the executor, and expressed satisfaction with its provisions. The testimony of the executor is that he placed the document with certain of her valuable papers; but he moved his place of residence and supposed that the papers were also |