Damon v. Dickson

Opinion of the Court, by McCully, J. The statement of the case will be found below in the opinion of Mr. Justice Preston, from whose decree appeal was taken. We affirm the opinion and decree therein, with a brief exposition of our views. The case turns on the construction to be given to the following clauses in the will of Mrs. Catharine Bates, admitted to probate in 1883. “I give all the residue of my property of whatsoever character to my sister Sarah (Mrs. Dickson) for her life, to hold and enjoy in all respects as she shall deem wise and proper, with remainder to her children.” The question is whether this created a life estate with a vested remainder, or was an absolute devise to Mrs. Dickson. If the words, “in all respects as she shall deem wise and proper,” had been omitted, a contention that the former was not [695] .the legal effect of the will could only be maintained on the common law doctrine that there could be no limitation over of a chattel, and that a gift for life carried the absolute interest. This is claimed by counsel for the defendant, M. Dickson. This doctrine may be considered to have become obsolete, by the distinction taken between the use and property, which resulted finall}'- in the doctrine that a gift for life of a chattel was a gift of the use only and the remainder over was good as an executory devise. The exception to this rule is the necessary one in the case of a bequest of specific things which can only be used by the consumption of them, as wine, corn, hay and fruits. Kent’s Com., 2, 352. Porter vs. Tournay, 3 Ves., 311. In Smith vs. Bell, 6 Peters, at p. 78, Chief Justice Marshall says: “The rule that a remainder may be limited after a life estate in personal property is as well settled as any other principle of our law; ” and in Allen Adam vs. Carpenter, 12 Cush., at page 387, Chief Justice Shaw says: “We have no doubt that personal property may be given to one for life, with a remainder to another absolutely.” There is no reason, in our view, why we should adopt now this antiquated common law rule in order to defeat an obvious intention of the testator. This is a devise to the sister to hold and enjoy for life, with remainder to her children. Against these plain and legally well understood words, is set the expression, “in all respects as she shall deem wise and proper,” and it is claimed that they are repugnant to and defeat the provision for a life estate and remainder. But if they were repugnant, why should it be considered that they predominated and controlled the other plain terms of the clause? The plain legal phrases which gave a life estate and a remainder should rather predominate and, if need be, abrogate the weaker indeterminate phrase. We do not, however, see that there is a repugnancy. The words have not a very definite meaning. They are unnecessary, but not conflicting with the estate which is clearly established by apt legal words. We read them as superfluously expressing that the devisee was to have an unre [696] stricted enjoyment of the life estate. It was not under the control of trustees. There was no limitation of the uses to which the income might be employed. There was a power (which would have existed without these words) to change the form of investment. But they do not extinguish the vested remainder. W. A. Whiting, for plaintiff. P. Neumann, for defendant Paty, assignee. Cecil Brown and A. S. Hartwell, for defendant M. Dickson. In Smith vs. Bell, quoted above, the words of the devise were: “I give and bequeath my personal estate unto my said wife to and for her own use and benefit and disposal absolutely; the-remainder of the said estate, after her decease, to be for the use of my said son.” The Court held that as the intent was clear to make a present provision for the wife and a future provision for the son, the last clause, establishing a remainder, could not be expunged or rendered totally inoperative by the words “disposal absolutely.” In Smith vs. Van Ostrand, 64 N. Y., the Court of Appeals held that a remainder may be limited upon a bequest of money as well as of other personal property, and the testator may confide the money to a legatee for life, trusting to such legatee to preserve the fund for the benefit of the remainder man, in which case the legatee for life becomes trustee of the principal during the continuance of the life estate. The construction -we give is fully supported by the reasoning and the authorities cited by the learned Justice, whose opinion follows hereafter. Decree will be signed accordingly.