Washbon v. Cope

HARDIN, P. J. 1. If Nancy Cope only took a life estate, or was “entitled to the use of the legacy during her life, and nothing more,” then this action was properly brought, and the plaintiffs were entitled to some relief. Tyson v. Blake, 22 N. Y. 558; Livingston v. Murray, 68 N. Y. 485. Plaintiffs alleged, and sought to establish by evidence, that their interests would be imperiled, without some security required, and to bring their case within the qualified rule stated in Graham v. Trust Co., 46 Hun, 267, and In re Fernbacher, 17 Abb. N. C. 339. 2. When the will was made, Nancy Cope was about 44 years of age, having been married 10 years, and was then, and still is, childless. It is suggested, “the words of contingency refer only to a death in the lifetime of a testator. ” In the tenth clause of the will the testator directs and authorizes his executors “to sell all the real estate ” which he had, except such as he had “given and devised * * * for the benefit of [243] my [his] heirs, at such times as said executors shall deem best;” and in the eighth clause he provides as follows: “I furthermore desire and direct that in the event of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons John G., Robert, and Henry R., or their heirs, share and share alike.” The language used indicates an intent on the part of the testator that the portion given to her, in the event she shall die without children, “shall be given,” either to his sons John G., Robert, and Henry R., “or their heirs, share and share alike.” Thus a provision is made for the giving of her share, upon her death without children, to his sons John, Robert, and Henry; and not being content to provide for their reception of it, only, he provides, still further, for the portion being given “to their heirs, share and share alike,” using words apt to control the estate at a time so far in the future as might be subsequent to the death of John G., Robert, and Henry R., or either of them. Considering the language just referred to, as well as the facts and circumstances surrounding the testator at the time of his execution of the will, and the whole language of the instrument, and observing the rule “that all the parts of an instrument are to be taken together in ascertaining its meaning, and that no part of it should be rejected as inoperative if the whole can reasonably stand together,” (Norris v. Beyea, 13 N. Y. 283,) the conclusion is reached that it was the intention of the testator to provide that the portion of his estate given to Nancy, in the event of her death without issue, should pass to those of the blood of the testator, and that the “words of contingency ” used by the testator do not refer to - a death in the lifetime of the testator, (Moffat’s Ex’rs v. Strong, 10 Johns. 12; Greyston v. Clark, 41 Hun, 125; Nellis v. Nellis, 99 N. Y. 513, 3 N. E. Rep. 59; Vanderzee v. Slingerland, 103 N. Y. 56, 8 N. E. Rep. 247; Buel v. Southwick, 70 N. Y. 581; Britton v. Thornton, 112 U. S. 526, 5 Sup. Ct. Rep. 291; and the opinion of Learned, P. J., in Mead v. Maben, 131 N. Y. 255, 30 N. E. Rep. 98.) In speaking of the rule referring to death without issue at a time prior to the death of a testator, Andrews, J., in Vanderzee v. Slingerland, supra, says: “But the rule established by the courts applies only 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 specific event. Indeed, the tendency is to lay hold of slight circumstances of the will to vary the construction, and to give effect to the language according to its natural import. ” See, also, his opinion in Soper v. Brown, (N. Y. App.) 32 N. E. Rep. 768. In Mullarky v. Sullivan, (N. Y. App.) 32 N. E. Rep. 762, O’Brien, J., in giving construction to a will, says: “It is perfectly true that, in determining what the testator meant, every part of the will must be considered, and that the natural and ordinary meaning of the words of a particular clause may be modified by other provisions. ” 3. As the foregoing views, if adopted, would lead to a reversal, it is not important to consider the effect of the surrogate’s decree declaring a [244] construction of the will in accordance with the views already expressed. There should be a reversal, and a new trial. Judgment reversed, and a new trial ordered, with costs to abide the event. MARTIN, J., concurs.