majority">Putnam, J.:

As the learned surrogate stated, the facts show a latent ambiguity. (90 Misc. Rep. 545.) A name fits one claimant but it is coupled with a residence which fits only the other claimant. This lets in parol evidence to show the circumstances *665surrounding the testator and his expressed views in order to aid in determining his intention, and to identify the person he attempted to describe. Declarations of the testator, even to his attorney at the time of preparing the will, were admissible, as such testimony was not privileged, since it was given by a subscribing witness. (Code Civ. Proc. § 836.)

Here the residence was important, and in the situation decisive. In such questions of construction the liability to a mistake in the name and not the place has been judicially remarked upon. Thus, in 1860 Metcalf, J., quoted Lord Abinger, that generally where mistakes have been assumed to have been made by testators, “ either in the name or description of the devisee, or the property devised,” it has been found “ that the mistake has been made in the name and not in the description.” (Thayer v. City of Boston, 15 Gray, 347, 349.)

The situation here is like the two competing beneficiaries, Magdalena Baumann Fuhge and Lena Baumann, in Baumann v. Steingester (213 N. Y. 328).

By such identification the will is construed according to the plain intent of the testator. This principle has been often applied where religious and charitable institutions, having similar corporate names, have been identified and ascertained ■ by parol, and then by construction the right one has been declared to be the intended beneficiary. Many such decisions in this country are in 1 Jarman on Wills (760 n; Am. ed. Randolph & Talcott). And a recent instance is German Pioneer Verein v. Meyer (70 N. J. Eq. 192, by Pitney, V. C.).

There is no merit in appellant’s contention against the surrogate’s power thus to construe this will, and still less as to her insistence upon a jury trial for such a question of construction.

I advise that the decree of the Surrogate’s Court be affirmed, with costs to the three parties to this appeal payable out of the estate.

Thomas, Stapleton and Mills, JJ., concurred; Jenks, P. J., not voting.

Decree of the Surrogate’s Court of Kings county affirmed, with costs to the three parties to this appeal payable out of the estate.

Citation profile

Relationships

How this case has been treated — in progress