Lyons v. Weeks

Ingraham, J. : The rule which I consider as decisive of the construction to be given to this will is stated by Judge Andrews in Vanderzee v. Slingerland (103 N. Y. 56), that “Where the context of the will is silent and affords, no indication of intention other than that disclosed by words of absolute gift, followed by a gift over in case of death, or of death without issue or other specified event,” the death referred to must be considered as a death happening before the death of the testator; and while this rule is well recognized, still, as Judge Andrews says, “the tendency is to lay hold of slight circumstances in the will, to vary the construction and to give effect to the language according to its natural import.” It is apparent to those whose duty it is to construe instruments of this character that the enforcement of this rule often changes the disposition of property from that which the testator had in view when he made the will. That period, when there is a bequest or devise of this character, gen [214] erally is that of the final disposition of the estate after the death of the life tenant, and it is of that period that a testator speaks when he provides for a devolution of interest upon the death of the remainderman. That this has been recognized is, I believe, the cause of the tendency to vary the construction imposed by this rule where there is any consideration which, from the position, age or condition of the testator and those interested, or from the will itself, would indicate that the testator had in view the death of the remainderman before the termination of the life estate rather than during his life. Now, in this will all of the surrounding circumstances would indicate that the testator could not have intended to refer to the death of the children of Jacob Weeks Cornwell during his own life. The testator was seventy-eight years of age when he made the will and died about four months after its execution; Jacob Weeks Cornwell, the life beneficiary,' was his adopted son, many years younger, and from the age and condition of the children of Jacob Weeks Cornwell it is not probable that the testator contemplated their dying before him. In making provision for his adopted son and his family, he did not give to his adopted son power to dispose of the property from which such provision was to be obtained, but himself disposed of it, thus indicating his intention to determine the manner in which the property should be ultimately disposed of. Upon the death of the "adopted son the property was to be divided equally between his widow and children. Each was to have a quarter, but, to keep this property in the family and prevent its being dissipated, he provided that, if either of those entitled to the remainder should die, the issue of the one dying should take the parent’s share. This was not a case in which the testator could have expected to live many years, or could expect to see his grandchildren, for whom he intended to make provision, grow up and die during his life. It was the will of an old man upon the brink of the grave, providing for those near and dear to him by provisions which, as appears from the whole will, he endeavored, so far as possible, to preserve for those that he desired to benefit. Then the language that is used is significant.- The clause in question comes immediately after the gift to the remaindermen, and is in connection with that gift which is not to take effect until the death of the life tenant. It is “ upon [215] his (the life tenant’s) death ” that the property is given to the four remaindermen, and it is in connection with that gift upon the life tenant’s death that there is a direction that the issue of such as may have died is to take the share to which his, her or their parent living would have been entitled. The language used affords an indication of a like intention ; it is “ the issue of such as may have died to take.” It seems to me that this language indicates that it is to those who may have died before the death of the life tenant, when the property is to come into the possession of the remainder-men ; that was in the mind of the testator, and the whole of the will seems to confirm such an intention. Again and again the testator uses this, or substantially a like phrase, to indicate his intention of substituting the issue for the parent’in the event of the death of the latter in cases in which he could not have contemplated the death of the parent during his (the testator’s) life. The judgment is, therefore, reversed and a new trial ordered, with costs to appellants to abide the result. Van Brunt, P. J., concurred; Patterson, J., dissented. McLaughlin, J.: It is a cardinal rule governing the construction of wills that effect is to be given to the intent of a testator when it can be done without violating settled rules of construction and such construction is not in hostility to some statute. In the case before us I think the intent of the testator is manifest and that effect can be given to it without in any way infringing upon or conflicting with this rule. By the 3d clause of his will, Jacob Weeks intended to give the land mentioned therein, in trust, to his executors for the purpose of receiving the rents, issues and profits of it, and, after making certain deductions, to pay the balance to his adopted son during his life, and upon his death to give the same absolutely to the wife of his adopted son and their three children — Ida Van Cott, Clarissa Lyon and Millard Filmore Corn-well — share and share alike, and if at the death of the son either the wife or any of the children should be dead, that the share or interest which the one who had died would have taken, if living, should pass and belong to his or her children. That this was his intent seems to me so clear from the language used by him, that it [216] needs no argument to demonstrate it. The language, after giving the direction as to paying the income to the adopted son during his life, is : “ Upon his death, I give, devise and bequeath the said lots of ground and buildings to Virginia Cornwell, wife of said Jacob "Weeks Cornwell, Ida Van Cott, Clarissa Lyon, and Millard Filinore Cornwell, children of said Jacob Weeks Cornwell, share and share alike, the issue of such as may have died to take the share to which his, her or their parent would, if living, have been entitled.” Clarissa Lyon died on the 17th of October, 1892, and Jacob Weeks Cornwell died on the 6th of November, 1898, and it is said that, if this was Jacob Weeks’ intent, it cannot be carried out without violating settled rules of construction, because Clarissa died before the life beneficiary; in other words, it is contended that Clarissa, upon the death of Jacob Weeks, took a vested remainder, which, upon her death — it having occurred before that of the life beneficiary — passed under her will, subject to the life estate or interest of the life beneficiary. It is undoubtedly true that Clarissa took a vested remainder upon the death of Jacob Weeks, but this remainder was, according to his intent, to be divested by her death, if it occurred prior to the death of his adopted son. As before indicated, she died before the life beneficiary, and thereupon her interest was divested and it passed to her children. Giving this construction to the clause of the will under consideration, the intent is carried out, and I do not think such construction conflicts, in any way, with the rule above alluded to or is in hostility to any decisions to which our attention has been called. It certainly is in harmony with Flanagan v. Staples (28 App. Div. 319), recently decided by this court. In the Staples case the testator gave to his wife the income from certain property, during her life, and the will then provided: “ Upon the death of my said wife, I give, * * * all my said estate and property unto my children in equal shares. * * * In the event of the death of any of my children leaving issue, * * * such issue shall take the share or portion * * * which the parent would have taken, if living.” One of the children, Joseph, died prior to the wife, the life beneficiary, and the contention was there made, as here, that the interest which Joseph would have taken, had he been living at the death of the life beneficiary, passed by the will, and not by the will of his father. This court, [217] however, held that such was not the true construction of the father’s will; that under the will each of the children took a vested remainder, which was subject to be divested in case of the child’s death prior to that of the wife. There is no distinction in principle between that case and this. The language employed to express the intent of the testator in each will is substantially the same. We gave effect to the intent in that case, and I think we should give effect to it in this. The consideration of authorities in the construction of wills serves little purpose, for the reason that the ultimate object to be attained is to ascertain and then give effect to the intent of the testator, and that intent must necessarily be ascertained from each will according to the language employed to express it. I am of the opinion that the judgment appealed from is wrong, and for that reason it should be reversed and a new trial granted, with costs to the appellant to abide the event. Van Brunt, P. J., and O’Brien, J., concurred.