In re the Judicial Settlement of the Account of Hohman

YaNn, J.: The only question presented by the learned counsel for the appellants in his brief or argument is whether Agnes Hohman, or the personal representative of John B. Wasmer, the deceased nephew of the testator, is entitled to the sum of $4,451.41, deposited with the surrogate of Oneida county. That sum represents one-half of the residuum of the estate bequeathed by the nineteenth clause of the will to said John B. Wasmer, the other half having already been paid over to Agnes Hohman under the twentieth clause. As said John B. Wasmer left no child, descendant or widow, and had not reached the age required by statute to bequeath per — 254 — ■sonal estate, bis father would be entitled to the surplus remaining after payment of debts. (3 B.. S. [7th ed.], 2285, § 21; 2304, §75, sub. 7.) The real estate would also be inherited by his father. (Id,, 2210, §§ 1-5.) The appellants contend that the seventeenth and nineteenth clauses of the will, when construed together, show a clear and determined intention on the part of the testator to allow no portion of his estate, under any circumstances, to be given to his brother Jacob Wasmer, father of said John B. Wasmer. The respondents contend that Jacob Wasmer takes nothing directly from the estate of the testator, but that he takes the estate of his deceased son by the paramount force of the statutes of descents and distributions, and that thus he is entitled to any vested interest of his son under the will in question. By the nineteenth clause of the will there is first a gift, absolute in form, followed by a condition subsequent, the effect of which is not to prevent the immediate vesting of the legacy, but, upon the happening of an uncertain event, to divest and determine the title of the legatee. The gift in terms describes a present vested interest. No words of futurity are used. No time of payment or performance is annexed to the substance of the legacy. There is no intimation of any desire to suspend or postpone its operation. If it did not vest upon the death of the testator when could it vest ? If the nephew were living now can there be any doubt that it would be payable to him ? But why, unless it had vested at the testator’s death? What event has since happened to cause it to vest ? The law favors the vesting of estates, and the general rule is that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of the gift from the instant that the instrument takes effect. (2 Jarman on Wills [5th ed.], 799 ; Wms. on Exrs. [7th ed.], 1223.) The language used imports a devise in fee of one-half of the residue of the real estate, and a bequest of one-half of the residue of the personal estate, as an immediate gift. While the amount could not be ascertained, and hence not paid over or delivered until after the debts were discharged and other provisions of the will executed, yet the title to the residuary estate vested the moment that the testator died. “ Although the residuary legatee dies — 255 — before tbe payment of debts, and before the amount of the surplus is ascertained, yet it shall devolve on his personal representative.” (Wins. on Exrs., 1454; Brown v. Farndell, Carth., 52; Bayley v. Bishop, 9 Ves., 6; Tucker v. Ball, 1 Barb., 94; Sweet v. Chase, 2 N. Y., 73; Bell County v. Alexander, 22 Texas, 350.) The legacy, therefore, upon the testator’s death became the property of the legatee, with all the ordinary incidents and attributes of property, and he could have given good title to the same upon transfer had he been of age. (Patterson v. Ellis, 11 Wend., 259; Arcularius v. Geisenhainer, 3 Bradf., 64; Pinney v. Fancher, Id., 198; Ennis v. Penty, Id., 382; 2 Redf. on Wills, 249.) It vested, however, subject to a condition. The condition contained in the nineteenth clause of the will when read in connection with that contained in the seventeenth, to which it refers, is that none of the money or property received by said John B. Wasmer under said will should be “given, paid or loaned ” by him to his father. No •other condition is specified in either clause. No other limitation is placed upon the disposition to be made by the legatee of the legacy or its proceeds. No attempt is made to limit its disposition by the statutes of descents or distributions, or of its transfer by sale on legal process, even if in favor of the father of the legatee. The condition implies some act on the part of tne nephew, a voluntary and intentional gift,.payment or loan. There is an important and essential distinction between compulsory and voluntary alienation. (Rochford v. Hackman, 9 Hare, 475.) The nineteenth clause is in express terms made subject to the condition contained in the seventeenth as to giving, paying or loaning, and if in fact the latter clause contained any other condition the former would not be subject to it. There is an express limitation to the condition specified. No effect is therefore to be given to the language of the seventeenth clause, preceding the condition, and which forms no part of it. That language relates to the creation of a trust and the disposition of a trust fund in certain contingencies, whether the condition was kept or not. The condition itself, as set forth in the seventeenth clause, prescribes no contingency upon which the nephew shall cease to enjoy, except his giving, paying or lending to his father. The subsequent general declaration of the testator’s intention — 256 — “ that the father of my said nephew receive none of my estate ; I give none to him by this will, and intend that none of my estate be given to him after its receipt by my said nephew,” does not add to or change the condition. It merely adds emphasis to the direction that the nephew should not give, pay or loan any part of his inheritance to his father. If it means more than this, why does it not make every legacy in the will conditional ? It cannot be contended that Mrs. ITohman and other legatees are prohibited from giving their part to Jacob 'Wasmer, although the general terms used would indicate such an intention, unless they are limited by the specific definition of the condition which precedes such use. Recent cases are emphatic in holding that where an estate is given in one part of a will in clear and decisive terms, it cannot be taken away or cut down by' any subsequent words, even when a part of the same clause, if they are not as clear and decisive, both in meaning and application, as the words giving the estate. (Roseboom v. Roseboom, 81 N. Y., 356-359; Clarke v. Leupp, 88 N. Y., 228 ; Campbell v. Beaumont, 91 N. Y., 464; Thornhill v. Hall, 2 Clark & Fin., 22.) But assume that the testator intended to provide, as a part of the condition, that the property given to the nephew by the will should not, upon the nephew’s death, be inherited by his father, and it will not aid the appellants. It would, in effect, provide that the heir-at-law and next of kin of the nephew could not inherit from him property that he owned. Such a condition would be void. It would be an attempt not only to subvert the statutes of descents and of distributions, but to deprive property of an essential attribute, such as the right of transfer. There is a point beyond which a testator cannot go in disposing of his estate. He cannot give a sum of money to another for his own use and benefit and yet control the use to be made of it. Such a condition would be inconsistent with the nature of the gift and void for repugnancy. Legacies upon the following conditions, with a gift over in case of violation, have been held void : if the legatee should die without making any disposition of the legacy (Green v. Harvey, 1 Hare, 428; Watkins v. Williams, 3 Mac. & G., 622; Hughes v. Ellis, 20 Beav., 193; Sevier v. Brown, 2 Swan [Tenn.], 112); if he should omit to make a will (Weale v. Ollive, 32 Beav., 421); if he should not — 257 — alienate within a given time (Shaw v. Ford, 7 Ch. D., 669); if he should sell to any but a certain person named (Muschamp v. Bluet, J. Bridgm., 132, 137; Schermerhorn v. Negus, 1 Den., 448; Attwater v. Attwater, 18 Beav., 330); if he should not spend both principal and interest during' his lifetime [Henderson v. Cross, 29 Beav., 216); if he should anticipate the dividends of a fund (Rishton v. Cobb, 5 Myl. & Cr., 132); if he should attempt to dispose of the principal (Bradley v. Peixoto, 3 Vesey, Jr., 324; Graham v. Lee, 23 Beav., 388; In re Payne, 25 id., 556); if the land should not be forever leased, or cultivated in a particular mode (Attorney General v. Catherine Hall, Jacob, 380, 395; 2 Redfield on Wills, 287); if the devisee should offer to mortgage the estate (Ware v. Cann, 10 B. & Cr., 433); if the devisee should continue to inhabit a certain town. (Newkerk v. Newkerk, 2 Caines, 345.) So where there was a devise in fee with a condition that the wife of the devisee should not be endowed or the husband become tenant by the courtesy, or that no annuity should be charged upon the . estate. (Portington's Case, 10 Co. Rep., 35 a.; Mildmay’s Case, 6 Co. Rep., 40 a.; Willis v. Hiscox, 4 Myl. & Cr., 197, 201.) A condition that the land shall not he subject to conveyance or attachment is void. (Blackstone Bank v. Davis, 21 Pick., 42.) In Williams v. Jones (2 Swan [Tenn.], 620) the testator’s will contained the following provisions : “ I loan to my beloved wife Martha Williams the following property, to wit” (sundry slaves), “ during her natural life,” and all his other property after paying his debts. “ The condition of the above loan is such, that if the said Martha Williams should think proper to marry or dispose of this property in any manner whatever so that Thomas Jones, Margaret Jones, Rebecca Andrews, Elizabeth Jones, nor either of them, nor their heirs, shall never enjoy any of the above named property, nor money, nor have anything to do with it in any manner whatever, then the above loan to be void, or else stand in full force and virtue. It is my desire that no misconstruction be laid on this my last will and testament so as to deprive my wife Martha Williams of a bona fide title to the above named property and the increase thereof forever ; provided that she should manage it in such manner that neither of the above mentioned ” (persons), “ nor neither of their heirs shall never inherit any part of my estate. But if she should — 258 — not dispose of this property so as to deprive ” (said persons) “ nor their heirs, then this loan to talce effect.” The widow sold some ot the slaves to the prohibited persons and bequeathed the rest, with the increase, to the same persons or their children. Charles Williams, sole heir-at-law and next of kin of the testator, filed a bill to recover the slaves ; held, that under the will the widow took an absolute estate which she might dispose of by will or deed to the excluded persons or others at her pleasure. The same rule governs both real and personal estate, as will be seen by examining the authorities cited. (See, also, 2 Redfield on Wills, 288; In re Yalden, 1 De G. M. & G., 53; In re Mortlook's Trust, 3 Kay. & J., 456; Martin v. Martin, 12 Jur. [N. S.], 889.) Conditions are not sustained when they infringe upon the essential enjoyment and independent right of property and tend manifestly to public inconvenience, such as the difficulty of ascertaining how much was left when the condition was broken and the danger of dealing with property that lacks some of the essential qualities of property. (Bradley v. Peixoto, 3 Vesey, Jr. [Sumners’ ed.], 324, note a.) The principle upon which these cases, rest is that the condition is repugnant to the gift and therefore void. If, then, the, nineteenth clause of the will is subject to the condition that the estate, real or personal, given thereby is to be defeated, provided the father of the legatee should otherwise be in a situation to inherit it from him, or provided, after it was paid over to the legatee, he should give any part of it to his father, the condition is void. The gift would stand, but the condition would be rejected. So far as the condition provides that before paying over the different legacies to the nephew the executors should ascertain whether he had “before then given, paid or loaned anything thereof or of the other property or moneys received by him under this will to his said father,” and if he had, prohibiting them from paying any more to him and directing that it be paid to some one else, it is doubtless valid. This, we think, is what the testator meant, or what the language used by him means. The condition, when thus construed, was never violated by the nephew. He could not legally have violated it owing to his age at the time of his death. He died owning one-half of the residue of the estate, both real and personal, and the statute transferred his title to his heir-at-law and next of kin. It — 259 — was, however, the estate of the nephew, not of the testator, when thus transferred. The father takes, in ’egal effect, not from the estate of the testator, but from the estate of his own son, and not •by the act of his son, but by operation of law. The decree of the surrogate’s court should be affirmed, with costs. IÍARDiN, P. J\, and Follett, J., concurred. The decree of the surrogate of Oneida county affirmed, with costs against the appellants.