Rice v. Tyler

HARDIN, P. J. Apparently the intention of the testator was to confide to his wife the power “to have and to hold” Ms “property and estate, both real and personal,” and to give her the power to-use the income thereof, as well as the body of-the estate; and foreseeing that she might not use up or consume the whole of the property, he provided for two contingencies—First, that in -the event she did not make a .disposition of any of the property that remained at the time of her death, the same should pass to his son, Frederick; and, secondly, he apparently clothed her with power to dispose of what remained of the property .at her death by will; and he circumscribed the execution of that power by a declaration of Ms expectation and desire, to be observed and followed by his wife in the event she exercised the power of disposition of the property; and in doing so he used the words, “and I expect and desire that my said wife will not dispose of any of said estate by will in-such a way that the whole that might remain at her death shall go out of my own family and blood relation.” Such interpretation,— such declaration of the intention of the testator seems to be reasonable in the light of the language used by the testator. Such construction gives full force and effect to all the language used'in the will, whereas the construction put thereon by the surrogate seems to be in defiance or disregard of the last clause of the will. When the testator, by the language in the early part of the second clause of -the will, had provided liberally for Ms wife, evidently two ideas came to Ms mind in respect to Ms property; the one being a contingency that his wife might leave at the time of her death, unexpended 431 or undisposed of, a portion of the estate, and in that event he provided it to pass to his son; and his second idea seemed to be that, if she should dispose of the same, (that is by will,) then, in providing for the contingency of her disposing of the same by will, he declares to her his expectation and desire that she “will not dispose of any of said estate by will in such a way that the whole that should remain at her death shall go out of my [his] own family and blood relation.” Apparently he had great confidence that his wife would carry out his wishes. The clause which we have been considering is followed by a declaration by the testator that he had at different times advanced over $5,000 to his son, and having said that he inserts a clause, viz. “which is one reason why I do not now .see fit to make a more liberal provision for him in this will.” The words “not now see fit to make a more liberal provision for him in this will” are suggestive of the idea that he had reposed confidence in his wife that, when she came to dispose of such part of the estate as should remain at her death, she would provide for his son. She seems to have acted upon that expectation and desire, and fulfilled to a large extent the confidence reposed in her by her husband, as in the first clause of her will she devises to the son the brick house and lot situated on the corner of Broadway and Third streets, and also bequeaths to him his father’s gold watch and the family library, “all silver purchased by his father; his father’s portrait in oil; dinner, breakfast, and tea set of white china; best black walnut chamber set, with some bedding;” as well as some other articles of furniture. And in the residuary clause of her will she provides that what shall remain after disposing of the specific legacies and devises that the remainder shall be divided into four equal parts, one of which is given to his son. In view of all the provisions alluded to, we are of the opinion that that portion of the testator’s estate which remained unexpended or otherwise undisposed of at the time of the decease of the wife passed under the provisions of her will, and that the execution of her will was in pursuance of the expectation and desire expressed to her by the testator, and the authority and power given to her by his will to dispose of such portion of his estate as remained in her hands at the time of her death. Terry v. Wiggins, 47 N. Y. 512; Flanagan v. Flanagan, 8 Abb. N. C. 418; Greyston v. Clark, 41 Hun, 125; Wells v. Seeley, 47 Hun, 109; Norris v. Beyea, 13 N. Y. 273; Leggett v. Firth, 53 Hun, 152, 6 N. Y. Supp. 158; Crozier v. Bray, 120 N. Y. 366, 24 N. E. Rep. 712; Smith v. Van Ostrand, 64 N. Y. 278; Rose v. Hatch, 125 N. Y. 433, 26 N. E. Rep. 467; Wortman v. Robinson, 44 Hun, 357; In re Williamson’s Estate, (Surr.) 9 N. Y. Supp. 476; Colt v. Heard, 10 Hun, 189; In re Blauvelt, (Sup.) 15 N. Y. Supp. 586. The foregoing views lead to a reversal of the orders appealed from. Orders or decree reversed, and proceedings remitted to the surrogate’s court for further hearing, with a provision that the costs of appellants be paid out of the estate. All concur.