Freeman v. . Coit

Andrews, J. The primary devise to Mrs. Coit was of the one-sixth part of the real and personal estate of the testatrix. The words “I give, devise and bequeath to my husband and to my mother, Harriet A. Coit, the other one-third of my property both real and personal, to be equally divided between them,” in the second section of the will, import a present absolute gift to the husband and mother as tenants in common of the one-third part of the estate. The claim that by the subsequent clause in the same section the prior devise to Mrs. Coit is made contingent upon the event of the testatrix’s surviving child or children attaining their majority, cannot be sustained. It is undoubtedly true that an interest given in one clause of a will, in terms denoting an absolute estate, may, by force of a subsequent clause, be qualified by a limitation over in a certain event, or be cut down or made to take effect only on a contingency. This is but the application of a familiar rule, *68 that the construction of a will or other instrument is to be made upon the whole words and not upon a part only, and that a particular word or clause may, in the light of other words or clauses, mean more or less than it imports, considered singly or by itself alone. (Taggart v. Murray, 53 N. Y. 233.) But there is another rule of construction of equal force and not inconsistent with the one just stated, and that is that when an interest is given or an estate conveyed in one clause of an instrument, it cannot be cut down or taken away by raising a doubt from other clauses, but only by express words or by clear and undoubted implication. (Thornhill v. Hall, 2 Cl. & Fin. 22 ; Roseboom, v. Roseboom, 81 N. Y. 356.) The intention imputed to the testatrix to take away the interest given to her mother by the primary devise in the event of the death of her children under age, and to substitute therefor a gift of a residue only of her estate after canceling the debt of $20,000 against her husband, attributes to her a change of purpose not naturally growing out of the event upon which the substituted disposition is predicated. The testatrix, by the first clause of the second section of the will, creates a trust estate as to two-thirds of her estate, during the minority of the children, for their benefit, with a remainder in fee to the children on their attaining twenty-one years of age. This is followed by the devise of the other third to the husband and mother. The contingency of the death of the issue of the testatrix before age is next provided for. There is no express revocation of the prior gift to the mother in case of the children dying under age. The testatrix clearly did not intend to diminish the interest of the mother in case of the death of the children under age. She gave the mother one-sixth of her estate as against both the husband and children. It would be very unreasonable under the circumstance to suppose that the testatrix intended to take it away or make it contingent for the benefit of her husband, on the death of the .children under age. The event she was providing for was the death of the children under age, and we think the clause in question *69 was solely intended to dispose, in that event, of the two-thirds of the estate previously given to them, and that the residue given by that clause to the mother was the residue of the two-thirds remaining after paying the husband the $20,000 as therein provided. This construction is the most natural one, and harmonizes all the provisions of the will. The terms of the disposition in the event of the children dying under age after the death of the testatrix, at most, raise a doubt whether the prior gift to the mother was intended to be affected. It is true that in one event the mother was to take no interest except after her husband should receive the $20,000, and that event was the death of the testatrix without leaving issue surviving, as provided in the third section. But the evidence tends to show that as the property was valued by the testatrix, the residue given to the mother by the third section would amount to at least one-sixth of the estate. But an intention to prefer the husband to the mother in the event of the death of the testatrix leaving issue, and their subsequent death under age, cannot be imputed without abrogating the express provision that in the event of the death of the testatrix leaving issue, tliej issue should take two-thirds, and the husband and mother one-third of her estate. The second alternative provision is certainly capable of a construction applying it only to the two-thirds of the estate in the event of the children dying before the period when the remainder to them was to vest in possession. This construction prevents the destruction of the estate vested in the mother by the prior clause, while the appellant’s construction would postpone any benefit to the mother for an indefinite period, when the clear intention was to give her a present absolute interest. The closing provision in the second section that nothing therein contained should be construed as revoking the legacies given by the first section, was inserted for abundant caution, to exclude the inference of a revocation of the legacies by implication from the general words in the second section purporting to devise the whole estate. The omission of a similar saving clause in respect to the devise to the mother, in the *70 event of the alternative disposition in the second section taking effect by the death of the children under age, does not justify the inference that the testatrix intended that upon the happening of that event the primary devise should be revoked. - The same reason did not exist for such a provision as in the case of the legacies. The mother’s rights depend upon the second section, and by the settled rules of construction no intent to revoke the primary devise to her can be gathered from its provisions. We are of opinion that the General Term correctly ad judged that Mrs. Coit on the death of her daughter, took an absolute estate in the one-sixth part of the real and personal property of the testatrix. The point that the General Term had no jurisdiction to reverse the decree of the surrogate on the question above considered, for the reason that the respondent did not appeal from the decree, which was adverse to her present contention, is sufficiently answered in the opinion of the General Term. We think there was no error in compelling the account of the one-sixth interest of Mrs. Coit, upon the aggregate of the principal and interest of the whole estate up to the time of the decree, after deducting therefrom the debts, and legacies, and expenses of administration. There were other questions determined by the General Term not before us on tliis appeal. Those questions have not therefore been considered. We find no error in respect to the matters before us, and the judgment of the General Term should therefore be affirmed, with costs to the respondents against the appellant personally, and without costs to the .other parties. All concur. ■ Judgment affirmed.