value to support the findings as to the contents of the missing clauses, and that the surrogate's findings of fact numbers 5 and 6 as to the contents of the missing clauses should be disapproved.

These conclusions will require a new trial where the contents of the parts excised from the will may be shown by competent evidence. In that case the will should be probated including the missing clauses as still a part of the will and unrevoked. (Lovell v. Quitman, 88 N. Y. 377, and cases collected in note to Hartz v. Sobel, 38 L. R. A. [N. S.] 797.) In case such evidence is not forthcoming, then we think that part of the will which remains should be probated.

The general form of the will is such that it is reasonably apparent that the missing 6th clause contained a money legacy, as did those which precede and follow it. The estate is large enough (over $30,000) to pay all the legacies and leave more than one-half for the residuary. There is an imperative direction to convert the real property into money and it must be construed as a will of personalty. If the 6th clause fails, the only effect is to increase the residue. The part of the 10th or residuary clause which remains and was not cut out gives onequarter of the residue to the Syracuse Home Association and one-quarter to the Onondaga County Orphan Asylum.

In jurisdictions where, like our own, attempted cancellation of particular clauses by their obliteration is ineffectual to revoke such clauses, the weight of authority seems to favor the probate of that part of the will which remains, even if the contents of the obliterated parts cannot be ascertained, unless it can be seen that the missing parts would affect or alter the remaining parts, while in jurisdictions where obliteration of a clause operates to revoke it, as in England, the remainder of the will stands exactly as if the revocation had been by codicil. (Tarbell v. Forbes, 177 Mass. 238; Matter of Miles, 68 Conn. 237; Doherty v. Dwyer, 25 L. R. Ir. 297; Woodward v. Goul

stone, L. R. 11 App. Cas. [1886] 469; Matter of Patterson, 155 Cal. 626; 26 L. R. A. [N. S.] 654, and cases cited and reviewed in note.)

It is evident that one-half the residue was given by that part of the 10th clause which is missing. If its contents cannot be ascertained, then there will be intestacy as to this one-half of the residue, for a lapsed or ineffectual gift of a portion of the residue does not fall into or become a part of the remaining residue. (Kerr v. Dougherty, 79 N. Y. 327; Beekman v. Bonsor, 23 id. 298; Booth v. Baptist Church, 126 id. 215; Howland v. Clendenin, 134 id. 305.) It would seem, however, that if the legacy in the missing 6th clause fails because its amount and donee cannot be ascertained, the effect should be that its unknown amount would sink into the residue as in the case of a lapsed legacy. (Matter of King, 200 N. Y. 189; Langley v. Westchester Trust Co., 180 id. 326, and other cases cited in the valuable note to Galoway v. Darby, 44 L. R. A. [N. S.] 782.)

We should have no doubt of the application of the rule of these cases, prevailing as it does in England and most of our States, were it not for the recent decision in Osburn v. Rochester Trust & Safe Deposit Co. (209 N. Y. 54). The will in that case contained a general residuary clause. Some time after it was made the testatrix executed a codicil, by which she gave a legacy of $1,000 to a church corporation not mentioned in her will. Before her death testatrix destroyed this codicil with intent to revoke it, but not to revoke the will. The principal question in the case considered in the opinion and in briefs of counsel was as to whether the destruction of the codicil animo revocandi revoked the will. It was held that it did not. But as to the effect of the codical and its revocation upon the residuary clause of the will it was said: "When the codicil modified the will by providing for an additional legacy before creation of the residuary estate it modified and revoked the will to that extent. This revocation was consummated at

the moment when the codicil was executed and published and thereafter the will was to that extent annulled. After this revocation had thus been consummated by the execution of the codicil the will could not be restored to its original form. and tenor simply by the revocation of the codicil. A revocation of the revocation could not thus be accomplished. The effect of this is that the testatrix died intestate as to one thousand dollars."

It appears from the briefs of counsel that the attention of the court was not called to the numerous American and English cases and text books where the rule is stated to be in substance that a testator is presumed to intend a general residuary clause as a sort of a "catch all" to absorb all invalid, ineffectual or lapsed legacies or devises, and that legacies and devises are given away from the residuary legatee or devisee only for the benefit of the particular legatee or devisee named, failing which for any cause the intention is not intestacy but absorption into the residue. We quote from 1 Jarman on Wills (6th Am. ed.), *716: "A residuary gift of personal estate, carries not only everything not in terms disposed of, but everything that in the event turns out to be not well disposed of. A presumption arises for the residuary legatee against every one except the particular legatee: for a testator is supposed to give his personalty away from the former only for the sake of the latter." (See, also, 2 Redf. Wills [2d ed.], 116 et seq.; 1 Underhill Wills, $$ 335, 336; Cruikshank v. Home for the Friendless, 113 N. Y. 337; Matter of Bonnet, Id. 522.)

In the Cruikshank case the rule was applied although the devise which lapsed was one specially created by testator by a codicil which failed to take effect, and yet the lands so devised and so taken out of the residuary clause contained in the will were held to be restored to the residue.

It cannot be assumed that it was the intention of the court in the Osburn case to overrule the cases in this State above

referred to or that the court was not familiar with the rule of these cases. It may be difficult to reconcile that case on principle with the earlier cases. However that may be, we think the Osburn case is not controlling in our case. Here there was no codicil taking anything away from the residue created by the will. The testatrix's intention to dispose of some part of her estate by the 6th clause of her will fails simply because her intention in that respect cannot now be ascertained. If the legatee named in that clause had died before the testatrix, the amount of her intended legacy would fall into the residue in accordance with her presumed intention. If the legacy cannot be paid because its purport cannot be ascertained, we think we must presume the same intention in respect of the residuary clause, and so that its amount, whatever it was, falls into the residue, of which one-half will be distributed to residuary legatees whose names still remain in the will. As to the other one-half, unless the missing part of the residuary clause is proved, there will necessarily be intestacy.

The decree of the Surrogate's Court should be reversed, and as this proceeding was pending prior to the enactment of chapter 443 of the Laws of 1914, amending the Code of Civil Procedure as to the practice in Surrogate's Court, we are required by section 2771 of the Code, as enacted by that act, to follow the practice as it existed prior to September 1, 1914. Hence, under the provisions of section 2588 of the Code as it existed before the amendments of 1914, we must direct a trial by jury of questions of fact arising upon the issues between the parties. Accordingly, the decree of the surrogate is reversed, with costs to the appellant to abide the final award of costs, and a trial by jury is ordered to take place at a Trial Term of the Supreme Court in Onondaga county to be specified in the order of the following questions of fact:

1. Did the will propounded for probate at the time it was

executed contain clauses or provisions additional to those now appearing therein?

2. What was the contents of such additional clauses or provisions?

3. Were such additional clauses or provisions cut or removed from the will by testatrix, or by any other person in her presence by her direction or consent, for the purpose or with the intent to revoke the will?

All concurred, except ROBSON, J., who dissented.

Decree reversed, with costs to appellant to abide the final award of costs; the 5th and 6th findings of fact contained in the decision are disapproved and a trial of the following issues of fact directed to be had, by and before a jury of the Supreme Court, at a term thereof to be convened at the city of Syracuse, in and for the county of Onondaga, on the first Monday in November, 1915, viz.: 1. Did the will propounded for probate at the time it was executed contain clauses or provisions additional to those now appearing therein? 2. What was the contents of such additional clauses or provisions? 3. Were such additional clauses or provisions cut or removed from the will by testatrix, or by any other person in her presence by her direction or consent, for the purpose or with the intent to revoke the will?