De Witt v. Cooper

BoaedmaN, J.: By the terms of Mr. Cooper’s will ho first gaye to his wife a life estate in his Albany dwelling-house and his country house, known as Guy park. In a later clause of his will he gave all his estate, real and personal, whatsoever and wheresoever situated, .to his trustees therein named, to receive the rents, issues and profits thereof, and after paying all taxes, assessments and repairs, insurance premiums, and the expenses 6f executing this trust, and said legacies and annuities as above given, to apply the same as follows : $7,000 to his wife annually, and “ the balance of said net rents, issues and profits” to other persons named. Mrs. Cooper, by her counsel, contends that this gift of all his real and personal estate includes the two residences, out of which a life estate is carved for her, and, as a consequence, that the trustees under the will are bound to pay all taxes, assessments, repairs and insurance premiums upon the two residences aforesaid, owned by her. It is conceded that, by the general rule, the tenant for life must pay the ordinary taxes and repairs. If any other rule shall be applied in this case, it will be due to express directions of the testator, by which it shall be indicated it was his intent that Mrs. Cooper should be exempted from such payments, and that they should be paid out of the residue of his estate .by his trustees. If the clause by which all his estate is given to trustees is so repugnant to the prior clause by which a life estate is given to Mrs. Cooper of the two residences and lots, then the life estate cannot stand. But this ’ rule is never applied, except when the two clauses are irreconcilable. In this case they are not even inconsistent, because Mrs. Cooper’s life estate is referred to and, in effect, excepted from the gift of all his estate. The plain and evident intent of the will is to give Mrs. Cooper an ordinary life estate in the city house and lot and in the country residence, and that all the rest of his real estate shall go to the trustees, out of which, with the personal property, rents, issues and profits shall be derived for the payment of legacies and [69] annuities. If all the estate were devised to the trustees, Mrs. Cooper would have no life estate, and tile trustees would be required to lease the two residences so as to obtain therefor the income which they, as trustees, are to receive and apply under the terms of the devise to them. The testator evidently intended to give to his trustees in trust all of his real estate, not thereinbe-fore disposed of, and that intent is plainly enough expressed in the will. Whether that gives the trustees any estate or interest in the city and country house and lands given to Mrs. Cooper for life, or whether as to the remainder in them he' died intestate, it is not now necessary to decide. Of the property which' the trustees became vested under the will, they had the management and control for the purpose of deriving rents, issues and profits. But of Mrs. Cooper’s life estates and of the lands from which such life estates were taken, the trustees could have no control during her life, and hence a direction to apply the rents, etc., of such lands would be absurd. ' The subsequent direction of the testator, in regard to payment of taxes, observes the same distinction. It is a direction to the trustees to pay the taxes on the property given to them by the will, in a particular manner, by specified times. Neither that nor any other clause in the will clearly indicates an intention of the testator, that Mrs. Cooper should not be required to pay taxes and make repairs in the ordinary manner required by law of life tenants. It will not suffice that a plausible construction of words and sentences might lead to such a conclusion, but the intent must be reasonably certain, and the language clear enough to justify a disregard of the general rule. (Lawrence v. Holden, 3 Bradf., 142.) We conclude, therefore, that Mrs. Cooper is legally bound to pay all ordinary taxes and make all ordinary repairs. As to extraordinary assessments and permanent improvements the burden should doubtless be apportioned between the tenant for life and the remainderman. (Peck v. Sherwood, 56 N. Y., 615; Cairns v. Chabert, 3 Edw. Ch., 312.) The same is true in regard to insurance, though no reason is seen why each party may not insure on his or her» own account such interest as he or she may possess, or leave the same uninsured at pleasure. [70] Judgment is ordered for a construction of the will in accordance with the foregoing opinion, with costs of both parties to be paid out of the estate ; the form of judgment, in case of disagreement, to be settled by BoaedmaN, J. Bocees, J. concurred ; LearNed, P. J., not acting.