Crozier v. Bray

Smith, P. J.: Action to recover the possession of five-sevenths of one-third of a farm of about 180 acres of land in Seneca, Ontario county. The common source of title was Luther Whitney, who died in May, 1878, leaving a last will bearing date 13th February, 1864, and a codicil thereto, dated 19th March, 1872. By the terms of his will the testator, after providing for the payment of his debts, bequeathed to his wife, Hannah L. Whitney, certain personal property, and then provided as follows : “ I give and devise to my wife and my two daughters, Tasey and Harriet P., in common, all my land or real estate, 'to occupy and dispose of as they may think proper, pro vided that my wife and daughter Tasey have a comfortable home in the house, together with all the fuel, fruit and other proceeds of the farm to which they will be entitled as joint owners; provided further, that should my daughter Harriet P. die without leaving a child or children, her share of my estate be equally shared by my wife and daughter Tasey.” This devise was made subject to the payment of several small legacies to certain children named, amounting in all to $100. The testator then bequeathed to his daughter Cornelia, $1,000, but in case of her death without leaving a child, it was to go to his wife and daughters Tasey and Harriet P., in certain contingencies. By his codicil, after making it a part of his will, the testator provided as follows: “ I therefore will and direct that all that may remain of the property of my wife, Hannah L., both real and personal, at her decease, be made over to and become the property of Cyrus Bray; providing said Cyrus should decease before my wife, then the property my wife should leave at her decease shall be received by my two daughters, Tasey and Harriet P., and become their property and their heirs.” Cyrus Bray is the husband of the daughter Harriet P., whom he married before the will was made. The testator’s wife died in 1876, before the death of her husband. [123] The contention relates to the share of the real estate devised to the wife; the defendants claiming the same under the gift in the codicil to Cyrus Bray, and the plaintiffs contending that the codicil is void, by reason of repugnancy to the gift to the wife, which they claim was in fee simple, absolute, and further that the gift to the wife having lapsed by reason of her dying before the testator, her share of the land descended to the testator’s heirs at law. The question as to the estate intended to be given to the wife is not entirely clear. The words of the gift to the wife and the two daughters, ending with the words “real estate,” if they stood alone, would suffice to convey to each an undivided third in fee. The gift in the codicil to Bray, is of what “ may remain ” of the real and also of the personal property, which latter is bequeathed to the wife in words that would convey it to her absolutely. These provisions also tend to indicate an intent to give the wife a fee in the land. But the words of gift above referred to are qualified by what immediately follows them, and especially by the two provisos in the same sentence, the last of which, if it has any effect whatever, indicates very clearly that as to his daughter, Harriet, the testator intended the devise to be of a life estate or a contingent fee only. By that proviso Harriet’s share is expressly given to the wife and Tasey, in the event of her dying without leaving a child. A like intent, in respect to the share given to the wife, is indicated by the codicil, taken as a whole, which, although executed several years subsequently to the will, is in express terms made a part of it and is to be read as such. Hndoubtedly, a devise of lands, with power of absolute disposal for the use of the devisee, without anything to qualify the words, is a gift in fee simple. There are numerous cases so holding, many of which are cited by the learned counsel for the plaintiffs, but it is unnecessary to refer to them as the doctrine is not disputed. But it has frequently been held that there is no repugnancy in a general devise or bequest to one person in terms which would ordinarily convey the whole estate, and a subsequent provision giving the same estate to another person upon the happening of a contingent event. (Smith v. Bell, 6 Pet., 68; Norris v. Beyea, 13 N. Y., 273; Terry v. Wiggins, 47 id., 512; Taggart v. Murray, 53 id., 233; Smith v. Van Ostrand, 64 id., 278; Wager v. Wager, 96 id., 164; Colt v. Heard, 10 Hun, 189.) [124] In Terry v. Wiggins (supra), after a devise in fee, the will contained a devise of other real estate to the same devisee “ for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same in part or in the whole, if she should require it or deem it expedient so to do,” and upon her death, a devise over to a religious society. It was held that by the last devise, the devisee took a life estate only, with a conditional power of disposal annexed, which did not operate to enlarge the estate to a fee, and that the limitation over was not repugnant to the devise, and was valid. The court considered that the power of disposal annexed to the gift only authorized a disposition by the devisee which should take effect during her lifetime and not by will, and stress was laid upon that fact, among others, in determining that the estate given was for life only. In the present case, the words “to dispose of” (which are the only words that can be regarded as expressly giving an absolute power of disposal, if such power is given at all), are coupled with the words “ to occupy,” which latter words could have effect only during the lifetime of the respective devisees. The proviso annexed to the gift that the wife and Tasey should have “a comfortable home in the house” on the laud devised, “together with all the fuel, fruit and other proceeds” of the farm, indicates that the testator had in mind, to make provision for them during their lives, and inasmuch as such provision for their benefit is to the exclusion of the daughter Harriet, it is, to that extent, a modification of the gift to the three as tenants in common. If the devise is of a life estate only, the power of disposal is limited to such disposition as a tenant for life can make, unless there are other words clearly indicating that a larger power was intended. (Henderson v. Blackburn, 104 Ill., 227, and cases there cited.) Every will must be construed ex visceribus suis, and in the present case there is much reason for saying that a proper interpretation of the will and the codicil, leads to the conclusion that the wife was intended to take a life estate in an undivided third of the real estate, remainder to Cyrus Bray, if living at the death of the wife, and if not, to the daughters Harriet and Tasey; that Harriet was to take a life estate in one-tliird, and in case of her death without issue, remainder to the wife and Tasey; and that Tasey was [125] to take one-third in fee, subject to the use of the house and of the products of the farm by the wife and Harriet during their fives. The litigation in this action involves, however, the share of the wife alone, and the provisions of the will in respect to the daughters are important .only as they bear upon the meaning of the devise to the wife. The interpretation above suggested gives effect to every provision of the will and codicil, in accordance with a cardinal rule to be observed in the construction of wills (Chrystie v. Phyfe, 19 N. Y., 344, 438; Taggart v. Murray, 53 id., 230, 236), while the construction contended for by the plaintiffs’ counsel ignores the codicil, and, to a great extent, the provisos and other qualifying words annexed to the gift. We do not, however, decide the question above discussed, not deeming it*necessary to do so in order to dispose of the case, for whatever the extent of the devise to the wife, as she did not survive the testator, the estate never vested in her. Thereupon, however, we conceive the estate did not lapse, but the ulterior devise contained in the codicil took effect. The case of Burbank v. Whitney (24 Pick., 146), cited by the defendants’ counsel, is in point. To the same effect are Mowatt v. Carow (7 Paige, 328); Norris v. Beyea (3 Kern., 273); Downing v. Marshall (23 N. Y., 366); McLean v. Freeman (9 Hun, 246); S. C., affirmed (70 N. Y., 81); Wager v. Wager (96 id., 164). In the case last cited it was said by Huger, Cli. J., delivering the opinion of the court, that “ an ulterior devise, to take effect upon the defeasance of a former ®ne, will attach as well when the failure of the primary devise is by the happening of some event, such as the death of the devisee during the lifetime of the testator, as by an event occurring after his death, by which the first devise after it has taken effect is defeated, unless the ulterior devise is so connected with and dependent upon the primary one that it cannot consistently with the ]3rovisions of the will have effect if the latter fails ab initio.” Here there is no such connection or dependency, the clear intention being to give to Cyrus Pray the share which the wife would have taken if she had survived the testator. Such intent is manifest from the terms of the will and the codicil, in connection with the fact that the testator (who we are to presume did not intend to die [126] intestate as to any part of his estate), suffered the codicil to remain as the expression of his wishes in regard to the disposition of the share in question, during the entire period of his survival of his wife. See, also, In re Stringer's Estate (6 Ch. Div., 1), cited by Andrews, J., in Van Horne v. Campbell (3 N. East. R., 316, 329), Again, even if the wife, in case she had survived her husband, would have taken an estate in fee, the provision in the codicil giving to Bray what might remain at the death of the wife, may be held to provide only for the case of her death during the lifetime of the testator. (Livingston v. Greene, 52 N. Y., 118; Kelly v. Kelly, 61 id., 47; Embury v. Sheldon, 68 id., 227; Briggs v. Shaw, 9 Allen, 516; Kerr v. Bryan, 32 Hun, 51.) Thus construed, it is •not repugnant to the will and is valid. On the whole, we are of the opinion that it is apparent from the will and codicil that the testator intended to give the land in question to Bray, in fee, in the contingencies that have happened. It results from these views that the motion for a new trial should be denied and judgment ordered for the defendants on the verdict. Barker and Bradley, JJ., concurred.