Quinn v. . Hardenbrook

Prior to the revision of our statutes in 1830, a general devise of real estate would not pass the title to such lands as the testator acquired after the devise. (Parker v. Bogardus, 5 N Y, 309-311, and cases cited.) But since the act in relation to wills and the proof of them (2 R.S., 51, § 5), every will, "made by a testator in express terms of all his real estate or in any other words denoting his intent to devise his real property, must be construed to pass all the real estate which he was entitled to devise at the time of his death;" but where the unlimited words of the statute are not used, there must be words in the will which will enable us to see that the testator intended that his will should operate upon real estate which he should afterward acquire (Lynes v. *Page 86 Townsend, 33 N.Y., 558, 569); and where, as in this case, the controversy is between the heir of the testator and a stranger to his blood, whose only claim is that the testator intended to take from his heir his legal inheritance and vest it in one who, but for his will, had no other claim upon it than her dower interest, which ended with her life, the claim of the heir has the advantage in this, that if there be two equally probable interpretations of the will, that one is to be adopted which prefers the kin of the testator to strangers (4 Kent Com., 11th ed., 535, n. 4); or, as Lord ELLENBOROUGH expressed it, in Doe v. Dring (2 Man. S., 445), the rule is peremptory that the heir shall not be disinherited unless by plain and cogent inference arising from the will. To the same effect the rule is stated in Vankleek v. Dutch Church of New York (20 Wend., 457, 571). Admit that in reference to the real estate devised the word "now," as between those having equal claims upon the testator's bounty, might as well be construed to refer to the time of his death as to the date of his will; it would be otherwise as between the heir and one claiming under a devise to a party who did not take by purchase and who could not have taken by inheritance; in every such case, the word "now" should be construed to refer to the state of things existing at the date of the will, and that it did so refer is obvious from another consideration. The testator instead of devising, in express terms, all his real estate, or using equivalent words, arranged it in two classes, one of which was, such as he then possessed, and the other such as he might thereafter become heir to from either of two sources. Here was a manifest reference to a present and future estate; one which he then possessed and the other specific estates which he might in future inherit. If it had been the design of the testator that the word "now" should refer to the time of his death and not to the date of his will, and thus manifest his design to devise all his real estate, a separate devise for that which he might in future inherit was unnecessary if without it those estates would have passed under the devise *Page 87 of all his real property "now" possessed by him; aside from these considerations there is no reason why language in wills which have not received a fixed and well understood construction, should not be construed according to its ordinary acceptation. By such construction, the word "now," unless qualified by something preceding or following it, would mean the present time, the date of its use, or to the existing state of things, or applying Lord Chancellor COTTENHAM'S construction, in Cole v. Scott (16 Simons, 259), referred to in 1 Redfield on Wills (380, n. 4), in reference to the word "now" in the description of the estate devised, he said, "It appears to me just the same as if the testator had said, `all the real estate of which I am on this tenth day of October, 1843, possessed.'" On the argument stress was laid upon the expression of the testator investing his wife with full power as his sole heir and administratrix to receive all and every part of the same, and to dispose of and devise all of the same at her death. This obviously had reference to and was limited to such estate as he possessed at the date of the will or should derive from the sources referred to. I am of opinion that the judgment appealed from should be affirmed.