Place v. Burlingame

HARDEN, P. J. Interpretation of the testator’s will, and a declaration of his intent, as evidenced by the language of the will, must be had in order to solve the question presented by the appeal. Respondents’ learned counsel call our attention to a provision of the Revised Statutes, which is as follows: “Every grant or devise of real estate or any interest therein shall pass all the interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied,” (Rev. St. [8th Ed.] p. 2461, § 1:) and under that statute, and the language of the will, contend that the testator devised in fee to the widow the house and lot in question, and call our attention to cases which have interpreted the statute, and in which it has been declared that all the interest of the testator passed under language used, unless it appear by express terms, or it was nec [676] essarily implied, that a less estate was intended to pass. Among the cases referred to are Roseboom v. Roseboom, 81 N. Y. 356; Campbell v. Beaumont, 91 N. Y. 464; Crain v. Wright, 114 N. Y. 307, 21 N. E. 401; Schult v. Moll, 132 N. Y. 122, 30 N. E. 377. The phraseology found in the cases referred to differs from the phraseology found in the will before us. We think the testator intended to devise only a life estate to his wife when he used the words: “I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett, and appurtenances thereunto belonging, together with all my household furniture, or, rather, the use thereof during the period that she may live and remain my widow. Her furniture, bedding, etc., that she had of her own when I married her is to be at her disposal.” We think the words, “or, rather, the use thereof during the period that she may live and remain my widow,” relate to and control all the antecedent language used in connection with the devise to the wife, and limited her to the use of the property during the period of her life, subject to a sooner determination if she had ceased to be his widow. Construing the words as relating to the real estate as well as to .the household furniture, they were apt and appropriate to cut down what otherwise might be a devise to her in fee of the real estate. We think the words, “I also give to her my cow free and clear,” do not aid the contention of the respondents; on the contrary, the words indicate that the testator, by the use thereof, understood what language to use when making an absolute bequest. The contention of the appellants is somewhat aided by the clause found in the fourth provision of the will wherein the testator gives one-half of all “the rest, residue, and remainder of my estate, both real and personal, of every name and nature,” to his grandchildren. We are therefore of the opinion that upon the close of the life of the widow her interest in the real estate ceased, and the same passed, under the residuary clause, to the grandchildren, who are the plaintiffs in this action. Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb. 110; Thomas v. Snyder, 43 Hun, 14; Crain v. Wright, 114 N. Y. 307, 21 N. E. 401; In re McClure, 136 N. Y. 238, 32 N. E. 758; Tallman v. Tallman, (Super. N. Y.) 23 N. Y. Supp. 734; Dew v. Kuehn, 64 Wis. 293, 25 N. W. 212. We have not overlooked the argument of the respondents, based upon the circumstance that in October, 1856, the testator conveyed a limited interest in the premises in question to his wife. The language then used is quite indicative of an intent on his part to vest her with only the use of the premises during her widowhood or life; and in answer to the argument that is made that it was his intention, by the use of the language found in his will, to give her a greater interest in the real estate, it may be observed that he was presumed to know the law that at that period of time a conveyance from husband to wife direct was not valid at law. Johnson v. Rogers, 35 Hun, 267; Graham v. Van Wyck, 14 Barb. 531; Winans v. Peebles, 32 N. Y. 423. It is not unreasonable to suppose that he used the language in the will relating to the real estate to confirm to her a life use of the real estate. We think the [677] construction of the will which obtained at the circuit ought not" to remain. Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur.