Van Derzee v. Van Derzee

By the Court, Hogeboom, J. Looking at the will in question, irrespective of legal rules, I have very little doubt that the testator intended to give Storm Van Derzee a fee in the premises in controversy. But applying the test that the intent of the testator must be sufficiently expressed on the face of the instrumént, and must be consistent with the rules of law, I am constrained to come to a different conclusion. The introductory wordp doubtless evince an intent to dispose of all the testator’s worldly estate, but this is not sufficient to enlarge the estate .subsequently devised into a fee, unless the words of disposition in the clause of devise are connected, in terms or sense, with the introductory clause, and import more than a mere description of the property. (Barheydt v. Barheydt, 20 Wend. 576, Doe v. Buckner, 6 T. R. 610. Denn v. Goshen, Cowp. 657. Doe v. Wright, 8 T. R. 64. Loveacres v. Blight, Cowp. 352. Olmsted v. Harvey, 1 Barb. 109 ; S. C., 1 Comst. 483. Jackson v. Harris, 8 John. 141.) [335] The clause of the will which devises the property in question to Storm Van Derzee contains no words of inheritance or perpetuity, and upon well established principles applicable to cases arising, as this did, before our revised statutes took effect, in 1830, confers upon the devisee only a life estate. ( Wheaton v. Andress, 23 Wend. 452. Van Alstyne v. Spraker, 13 id. 578. Burlingham v. Belding, 21 id. 463. Jackson v. Wells, 9 John. 222. Jackson v. Embler, 14: id. 198. Ferris v. Smith, 17 id. 221. Olmstead v. Olmstead, 4 Comst. 56. Mesick v. New, 3 Seld. 163.) The only other clause of the will which can be relied on, to enlarge the life estate into a fee, is the following: “ Further, I make my wife master of one third of my aforesaid estate as long as she remains my widow, and after her marriage or death to be and belong to my aforesaid son Storm Van Derzee.” I think this does not have that effect, for the following among other reasons: 1. The words “ aforesaid estate” seem to refer to the estate or land before given to Storm Van Derzee in the clause previously mentioned. They naturally refer to an estate before given to Storm. They apparently refer to real estate, and are probably a provision in substance like that for a widow’s dower. They could not well refer to an estate in fee, for they are restricted to an estate during life or widowhood. They do not seem to refer to the testator’s whole “ worldly estatefor a devise to the widow, of one third of the whole real and personal estate, would directly conflict with several previous devises to other persons, and would also, in some measure, conflict or fail to harmonize with a devise of horses and cows to the widow for the same term, immediately following the devise in question. 2. The words “ aforesaid estate” seem to be words of description or of reference, and not designed to mark the quantity or quality of the estate devised. In such case they are not held necessarily to embrace the testator’s entire interest in the property, but to take the form and character of the estate to which reference is made. (Frogmorton v. Wright, 3 Wils. 418. Doe v. Ravell, 2 Cr. [336] Jervis, 621. Doe v. White, 1 Exchequer Rep. [Welsby, Hurlstone & Gordon,] 525, 535. Morrison v. Sempler, Binney, 97. Spraker v. Van Alstyne, 13 Wend. 578.) 3. There is nothing, therefore, in the words “ aforesaid estate,” necessarily or fairly importing an intent by the testator to employ them as descriptive of the quantity of his interest; and this conclusion is strengthened by the fact that he has used words of inheritance in other parts of the will, in reference to other property. 4. If these words were construed as being descriptive of the quantity of interest, instead of terms of reference or identification of property, they would only enlarge into a fee the previous life estate as to the one third devised to the widow during her life or widowhood; for the words fairly limit the remainder to that one third. Such could scarcely have been the testator’s intention. 5. The estate of Storm is not enlarged into a fee simply by being a remainder limited upon a previous life estate. Successive life estates were not uncommonly limited upon the same property in express words; and therefore there should be no implication against them as improbable. Besides, it has been held in repeated instances, that where successive estates were thus created by will without words of inheritance, they must (the latter estate as well as the first estate) be construed as simply estates for life. (Hay v. Earl of Coventry, 2 T. R. 83. Compton v. Compton, 9 East, 267. Doe v. Clark, 5 Bos. & Pull. 343. Doe v. Wright, 8 T. R. 64. Ferris v. Smith, 17 John. 221. 2 Powell on Devises, 377. Edwards v. Bishop, 4 Comst. 61. Harding v. Roberts, 23 Eng. Law and Eq. Rep. 452.) Although, therefore, if we allowed ourselves to indulge in conjectures, we might very plausibly infer a probability that the testator, by the will in question, designed to pass a fee to Storm Van Derzee; especially as the will contains no residuary clause; we are nevertheless bound, I think, by the rules of law, to interpret the will as only conferring upon him a life estate. I discover no reasonable foundation for the remaining posi [337] tion assumed by the defendant’s counsel, that the testator had no interest in these lands which could pass by the terms of this will. A portion of the property has been held, possessed and claimed by the testator and his successors since 1769, and the residue since 1790 as under a lease in fee. Rent has always been paid for the entire portion in that character. Such a title has been uniformly recognized by the landlord. It has been held adversely to the landlord; that is, the interest of the tenant or lessee in fee as such, has been so claimed and held, and that makes as perfect a title by adverse possession as if the Van Derzees had claimed the whole title and the entire interest. It has been held as a lease or rent farm, and from the moment that the lease was made, or rent paid and received, the title of the tenant to the farm, as tenant, to the extent of the qualified ownership resulting from the relation of landlord and tenant, was as perfect and as adverse to the landlord’s title or claim to the tenant’s interest, as is the title of the grantee in a deed perfect against and hostile to the title of the grantor, from the moment, the deed is executed. (Bradstreet v. Clarke, 12 Wend. 602. Osterhout v. Shoemaker, 3 Hill, 513. Averill v. Wilson, 4 Barb. 180.) The title and claim and possession of the Van Derzees, thus derived and held, has been uniform, unbroken and perfect from the early periods above named to the present time. The landlord can never dispossess them so long as they comply with the terms of the lease or the conditions of the tenancy. I cannot see any pretense for saying that here there was no inheritable interest. There is nothing in Bigelow v. Finch (17 Barb. 394) which conflicts with this view. The disposition made of the case at the circuit was therefore right, and there must be judgment for the plaintiff upon the verdict. [Albany General Term, September 5, 1859. Wright, Gould and Hogeboom, Justices.]