Kelso v. Lorillard

Van Brunt, J. It is an elementary principle in the construing of a will that the intention of the testator is the first and great object of enquiry, and that for the purpose of ascertaining such intention we are not confined to the particular clause in question, but gather the same from the whole instrument. Applying this rule of construction to the will in question, it would seem to be evident that Mrs. Cuming intended that, in case her son died without issue, under age, the property which she derived from her mother should not be diverted from her mother’s family. She therefore provides, that if her son should die before he becomes twenty-one years of age, unmarried, and without leaving a child or children—her husband being then dead—that the estate given to her by her mother should go to her two sisters, to be equally divided between them, and in case either of her sisters should depart this life without leaving a child or children then the survivor to take the whole. It is urged by the defendants that death during the lifetime of the testator was referred to in this clause, and cites the case of Moore v. Lyons (25 Wend. 119, and cases there cited). An examination of these cases will show that the question of survivorship was determined to relate to the death of the testator rather than to the termination of the intermediate estate, because thelatter construction would defeat the object which the testator manifestly intended to accomplish by his will. The limitation to her own family by the testatrix in her ' will related only to the property which she had derived from her mother. That property she devised to her sisters, and her sisters’ children, if they should die leaving any children ; but if either of her sisters should die without children before she would be entitled to enjoy any portion of the estate, it undoubtedly was the intention of the testatrix that the surviving sister should take the whole estate. There is another consideration which goes to show very strongly that it was the intention of the testatrix that survivorship should relate to the death of her son rather than [303] to her own decease, which is suggested by the date of the will and the day of the death of the testatrix. The will was executed on the 25th of August, 1856, and the testatrix died on the 26th of August. This circumstance shows that the will in question was executed in view of an expected speedy death, and it is idle to presume that under those" circumstances that the testatrix could have possibly referred in her will to the death of her sister Estherina, leaving children, before the death of the testatrix, wdien at the time of the making of the will Estherina never had been married. It is further urged by the counsel for the defendant that if the survivorship related to any time except that of the death of the testatrix there was an unlawful suspension of alienation, which would render, invalid the whole devise over to the sisters. It is undoubtedly true that any limitation upon the title which the sisters would take would be void under the statutes, but such illegal limitation would not avoid the whole devise. The courts have uniformly held in such cases the devise to be good, but the limitation over bad, and the devisee takes a fee. (Woodruff v. Cook, 61 N. Y. 638.) The right of Estherina, therefore, to inherit depended upon her surviving the son of the testatrix, and she having died before that event, the surviving sister took the whole estate. The judgment must be reversed and a new trial ordered, with costs to abide the event. Larremore and Beach, JJ., concurred. The judgment reversed and new trial ordered, with costs to abide event;