Harvey v. . Olmsted

Gardiner, J. According to the terms of the devise, Nathaniel Olmsted, sen., took a life estate only in the mountain lot. Such was the established construction, at the making of this will, of a devise of real estate containing no words of limitation. (6 Term Rep. 610; 2 Preston on Estates, 188; 20 Wend. 580.) It is a familiar proposition that a testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense. (Wigram on Wills, Law Lib. vol. 2, p. 11.) The words of this devise, as we have said, import an intent of the testator to grant a life estate only in the premises in question, but it is claimed that the context enlarges the estate to a fee, by showing that such must have been the intention of the testator. We are referred to the second clause by which the testator “ orders and directs that his real and personal estate be divided and distributed as follows.” This clause is obviously in trod uc *490 tory to the actual distribution afterwards made by the deceden:. It indicates an intention to dispose of his property, real and personal. But this is not enough. There must be an intent and words of disposition. Both must concur in every valid devise. (Saunderson v. Dobson, decided in 1847, in Exch. Law Jour. 249 ; Doe v. Earle, id. 242.) The clause cannot embrace all the subsequent devises of real property, because a portion is devised to the wife of the testator during her widowhood. Nor are the introductory words necessarily connected with the disposition of other portions of his real estate to his sons. The estate of the testator in his’real property was as much the subject of division as the lands themselves. If he had given a particular tract or farm to one of his sons, and made no disposition of the residue, it would not be pretended that we could extend the gift to other lands, however emphatically the testator should announce his intention to settle all his property by his will. This remark is applicable to the devise in question. The testator has used language which,, according to an unbroken series of decisions, import an intent to give an estate for life. Such is his disposition. To use the language of the introductory clause, he has “divided and distributed” such an interest, and no other, to each of his sons. If the residue of his estate is undisposed of, it presents the ordinary case of a general intention not executed. • But it furnishes no reason for departing from the language of the testator, nor any authority to this court in his place to distribute his property for him. (Barheydt v. Barheydt, 20 Wend. 580, 581.) There is no foundation for saying that Nathaniel took a fee in consequence of the legacy of $1000 being a charge upon him in respect to the lands devised to him by the testator. A charge to create a fee by implication, must be upon the person of the devisee in respect of the lands devised. Where it exists, it takes from the devise the character of a gift, and turns it into a purchase. The mode of compensation prescribed by the testator, may be by the payment of debts or legacies, or by the relinruishment of a right. To guard the devisee under such circumstances against loss, according to the presumed intent of *491 the testator, the estate is turned into a fee. (Spraker v. Van Alstyne, 18 Wend. 205, and cases cited; Jackson v. Ball, 10 John. 143; 20 Wend. 581.) In this case the legacy to Joseph W. Olmsted is made a charge upon the personal estate, and that failing, upon the Powers lot. At most the charge upon this land is contingent. There is no obligation imposed upon Nathaniel in respect of the devise to him of the mountain lot; on the contrary, in default of personal property, the legacy is to be paid in land other than the premises in question, to be appraised by the executors. (20 Wend. 582, and cases cited ; 8 John. R. 142; 18 Wend. 205, and cases cited.) We think, therefore, that the decision of the supreme court should be affirmed. Judgment affirmed.