Provoost v. . Calyer

Church, Ch. J. The principal question in this case is whether, under the will of Peter Calyer, senior, the children of his son Peter took a remainder in fee or only a life estate in the premises devised to the son. The particular clause in the will is as follows: “ Item. I give and bequeath unto my son Peter, all that part of my farm lying on the south and east side of the land I now have bequeathed to my son Jacobus; also a lot of salt, meadow adjoining the ditch as it is now staked out; also, grant to Peter a wagon road across the lands I have bequeathed to my son Jacobus, to pass and repass to the river with wagons and horses; to him, during his natural life; after his decease to his lawful children.” The will was executed in 1804, prior to the Be vised Statutes ; and by the law as then adjudged by the courts, a devise to a person without words of limitation or inheritance, carried a life estate only (1 N. Y., 489 ; 4 id., 61; 36 id., 231); and this construction was adhered to although the devise was of a remainder after an intermediate life estate. (Id.) Hot-withstanding this general rule, it is well settled that if, from the provisions of the whole will, it may be inferred that the intent was to convey a fee, such construction will be given as to carry out that intent; and the intent is to govern if consistent with the rules of law. It -is said that the presumption in favor of a life estate can only be overcome by a contrary intent clearly appearing. (3 Wend., 510; 4 N. Y., supra.) The meaning must be arrived at, not by conjecture, but by substantial reason, founded upon all the provisions of the will, the surrounding circumstances and the language employed. It is unnecessary to refine upon the certainty *550 with which the intent must be fixed. It is sufficient to say, that the adjudged construction of certain words will prevail unless it can be fairly seen that a different construction was intended. A blind adherence to arbitrary rules will frequently, if not generally, frustrate the design of a testator in the distribution of his property; and courts cannot be too vigilant in preventing such a result, whenever it can be done without overturning established principles. In popular understanding the language itself of the clause in question would carry the whole estate to the children after the expiration of the life estate. When a testator declares that he gives certain property to a son during his .life, and after his decease to his children, the natural inference is that the testator intended to vest the absolute property in the children. Indeed, in the absence of words of limitation this would be so by a general gift of land; and the whole estate would ordinarily be taken to pass (3 Greenl., 239); but the rule of the common law was against disinheriting the common-law heir without express words or clear intention to that effect. (Wilds’ Case, Coke, part 6, p. 17, and cases before cited.) In this will there are legitimate indications of an intent to give an absolute estate to the children of Peter, assuming that the language standing alone would give only a life estate. It does not appear but that all the testator’s property was specified in the will; and the presumption is that it was. It is presumed, also, that the testator intended to dispose of his whole interest in his property. The law favors a construction which will prevent partial intestacy (53 N. Y., 351) ; and, as there is no residuary clause, it would follow that the fee was intended by the provision in question. Otherwise, there would be left a remainder after successive life estates, undisposed of. It was held in Gernet v. Lynn (31 Penn. St., 94), that a clause in a will declaring the purpose of the testator to dispose of his whole property, was alone sufficient to infer an intention to give the remainderman a fee, without words *551 of inheritance. The clause in that case was similar to that in this. The testator devised land to his son J. “ to hold the same to him during his natural life, and after his decease, to his children lawfully begotten, share and share alike.” The court says: “As there is nothing in the devise to the children tending to show that they were to take less than a fee simple, and as there was no other disposition of the property than that already referred to, it follows that the intention was to give the children of Jonathan the remainder in fee simple.” (See, also, 3 Maine, 221.) It is true that words of inheritance are employed in two clauses of the will, and omitted in all the others, but the manner of their use indicates, I think, that the testator had no accurate knowledge of their importance, either in using or omitting them. In the first item he gives to his son Charles the house and land which he now has in possession, to him, “ his heirs and assigns' forever,” while in the second item he gives certain lands to his son Jacobus without these words. It is conceded that a fee was intended in the devise to Jacobus, because he is charged with the payment of the debts; but this would not have prevented the use of words of inheritance by the testator if he had understood their importance. It is quite evident from the whole will that these words were not deemed important to vest an absolute estate. In the third item he gives a lot of land to his daughter Jane during her life, and after her decease to her children, and in the fourth item he gives to each of his daughters, Eva, Margaret and Catharine, a lot of land, without words of limitation or inheritance. In the same item he directs his farm in the town of Brooklyn to be sold, and the avails equally divided among his daughters, except that his daughter Jane’s share is to be put at interest, which is to be paid to her during her life, and after her decease the principal and interest paid to her children. This shows an intention, as to the children whose share was to be enjoyed for life only, to vest the absolute property in their children at their death. It may be presumed also that the testator intended an equal *552 division of his property among all his children, and the construction contended for would produce manifest inequality. It is evident that he regarded all his children equally the objects of his bounty, and their children as the representatives in interest of their parents. The presumption against disinheriting the heir has no substantial application in this case. The grandchildren of the two children who took a life estate, especially those then in being, were, as it must be presumed, equally the objects of the testator’s bounty as his other children, and were intended to be substituted in place of their parents as heirs. Shaw, Ch. J., in Plimpton v. Plimpton (12 Cush., 458), lays down the general rule, “ that when land is devised to one for life, and over to another, especially to a son, without words of limitation, or any further words to express his intent, such a devise over is construed to be a fee.” It would be an artificial construction of this will to suppose that the testator intended to leave this and other remainders undisposed of, without even a residuary clause, and I cannot think that any court would be justified in giving it such a construction. It would be applying an arbitrary rule in violation of the intent of the testator. (11 Cush., 528; 5 Cow., 221; 48 N. Y., 106.) JSTor did the son Peter take a fee. The rule in Shelly’s Case does not apply. The word “ children,” as used in this will, is not equivalent to “ heirs.” The former is a word of purchase. Peter Oalyer, the son. therefore, took a life estate, and his children in esse, at the death of the testator, took a vested remainder in fee, which would open to let in after-born children. (4 J. R., 61.) The judgment must be affirmed. All concur. Judgment affirmed.