33 A.D. 436 | N.Y. App. Div. | 1898
This action was brought for a partition of certain 'real estate situate in the city of New York. By the interlocutory judgment, from which this appeal is taken, it was determined that the plaintiff is seized of an undivided one-half, and that the defendants Julie O. Bertrand and Leonie 0. Kayser are each seized of an undivided one-fourth of the premises in question. The suit was originally brought by Olivia Hoyt, who alleged in her complaint that she owned one-lialf of the premises; that Olivia G. Bates owned the other half; that thé defendants Kayser and Bertrand and the three defendants Virolet “ pretend or claim to have some interest in the premises,” the nature of which interest was unknown to the plaintiff. The real situation of the present plaintiff’s claim of title does not appear in the pleadings, but it is shown in the proofs. Pending suit, and apparently before answer, Mrs. Bates conveyed her one-half interest mentioned in the complaint to the defendants Leonie O. Kayser and Julie C. Bertrand, and they conveyed to Mrs. Hoyt an undivided one-half interest in.the premises. .Also pending suit, Mrs. Hoyt, the original plaintiff, conveyed to Mrs. Bates all her right, title and interest in the whole premises, thus divesting herself of any claim to the property. Mrs. Hoyt died, and by order of the court Mrs. Bates was substituted as plaintiff, and her claim is now principally based on the assumed ownership of that half of the premises which in the complaint it is alleged belonged tó Mrs. Ployt when the action was brought. As no change has been made in the pleadings, so far as the record discloses, the case has been tried without either a complaint or answer setting up the title of Mrs. Bates to the one-half interest retained or claimed by Mrs. Hoyt when she instituted the suit, but all parties have proceeded to trial on the assumption that Mrs. Bates’ rights, if any she has, under the deed from Mrs. Hoyt, include those asserted by Mrs. Hoyt in the complaint, Mrs. Bates was an original defendant, but" did not answer. The defendants Kayser and Bertrand,, in their joint answer, among other things, seem to admit that Mrs. Hoyt had an interest in the premises, b”t they deny that Mrs. Bates, as a defendant, was the
Leon Alfred Virolet and Jean Robert Virolet are infants, and an answer was interposed in their behalf by their guardian ad litem, which sets forth their interests substantially in the same way as they are stated in the answer of their mother, and they ask for the same relief respecting a partition and sale of the premises. The proofs taken by the referee relate to all the matters set up in these answers, and the rights of the respective parties have been determined upon all such proofs.
The finding of the referee that Mrs. Bates, the present plaintiff and Mrs. Kayser and Mrs. Bertrand, were the owners as tenants in common of the whole estate passing by the Pearson deed, was based upon a construction of that deed which made it operative as a conveyance only between Pearson, the grantor, and Mrs. Olivia Hoyt, one of the parties to the conveyance. By the terms of that deed there were three parties to it, namely, Pearson, the grantor ; Mrs. Hoyt, party of the second part, and Jean B. Virolet, party of the third part. In the premises of that deed it is stated that the party of the first part hath granted, etc.-, and by these presents doth grant, etc., unto the said party of the second part, and to her heirs and-assigns forever, all that certain piece or parcel of land, etc., describing the premises in question. The habendum clause is as follows : “ To have and to hold the above-granted, bargained and ■ described premises, with the appurtenances, unto the said party of the second part, to her own proper use, benefit and behoof, for the residue and remainder of her natural life, and from and after the decease of the
It is a rule of construction applicable to the interpretation of deeds that whenever there is a grant contained in the. premises of a deed, operative by its terms between all the parties to the deed, that the estate granted in the premises is not to be diminished by the habendum, and in disposing of this case the learned referee has applied that rule which was enforced in Mott v. Richtmyer (57 N. Y. 49). That case was considered by the referee as controlling here. There can be no doubt of the existence of the rule of construction, but it is only a rule of construction and must yield to the manifest intent of a grantor if it is made plain that such intent makes that rule inapplicable. In the State of 'Hew York rules of construction are not arbitrarily' applied even as to deeds. It is provided by statute (1 R. S. 748, § 2) that “ in the construction of every instrument creating or conveying, or authorizing the creation or conveyance, of any estate or interest in lands, it shall be the duty' of courts of justice to carry into effect the intent of the parties so far as such intent can be collected from the whole instrument and is consistent with the riiles of law.” This provision of the statute makes it the imperative duty of the courts to ascertain the intention of the parties from all the provisions of the instrument. If there is nothing more in the deed than a grant of the whole estate subsequently limited by the habendum clause, then the rule of construction laid down in Mott v. Richtmyer must necessarily prevail; that-is to say', where there is nothing more than the premises and the habendum to be considered the settled rule of construction will apply. The purpose and intent of the section of the statute is declared by the revisers to be, in substance, the application tó conveyances of land of the principle of interpretation which universally applies to the construction of personal contracts and of wills, and Judge Duer, one
In determining the rights of the parties to this action, under the Pearson deed, which is the source of title of all who are interested in the premises, we are not-limited “to the technical force or technical defects of the phraseology,” in which the interests were conveyed. We are to ascertain the intent from the whole instrument, and it may be assumed that we are not at liberty to go outside of the terms of the instrument itself to ascertain that intent. We have, therefore, given no regard whatever to declarations or statements of Mrs. Hoyt concerning her understanding of the quantity, of interest derived by her through the Pearson deed, but within the four corners of that deed there is the most convincing evidence of an intent to limit the interest granted in the premises to Mrs. Hoyt to an estate for life and to °;ive the absolute fee in the remainder to Jean B. Yirolet and his heirs. In the first place, if it were intended that Yirolet should have no relation to the conveyance, why should he be made a party to the instrument? The circumstance of making a person a party to a deed indicates some intent that he shall in some way be affected by the conveyance ; but that is a consideration not entitled to much weight standing alone. The deed (or a fac simile of it) from Pearson has been submitted to us. It is the ordinary stationer’s blank of a long-spaced, full-covenant warranty deed, such as was in ordinary use by conveyancers in the year 1865. The conveyance is partly in print and partly in writ
The proper interpretation of the deed is, that Mrs. Olivia Hoyt took only a life estate. At the time this cause was decided she was dead, and Mrs. Bates, the substituted plaintiff, took nothing except the Kayser and Bertrand interest by conveyance from Mrs. Hoyt, which would survive the latter. The referee’s conclusion, therefore, with respect to Mrs. Bates being entitled to the undivided half under the grant from Pearson to Mrs. Hoyt was erroneous. At the time of the entry of this judgment she had no interest in the premises except that derived through the deed of Mrs. Kayser and Mrs. Bertrand, but these premises belonged to her and the children of Jean B. Virolet, subject to the right of dower of the defendant Louise Virolet.
A question has arisen as to the rights of the children of Jean B. Virolet; and inasmuch as those children have asked for a partition and sale of the premises and that their rights in the property be settled by decree, they are entitled to have such rights adjudged in this action. (Code Civ. Proc. § 1543; Hagerty v. Andrews, 94
It remains to be considered what would be the effect of the legitimation of Leon Alfred upon his right to inherit property in the State of Hew York as an heir at law of his father. That question has been settled by what was decided in Miller v. Miller (91 N. Y. 315), in which case it was held, upon a full consideration of the-authorities bearing upon the subject, that, ‘‘when an illegitimate child has, by the subsequent marriage of his parents, become legitimate by virtue of the laws of the State or country where such marriage took place and the parents were domiciled, it is thereafter legitimate everywhere, and entitled to all the rights flowing from that status, including the right to inherit.” The subject is so fully considered in the case cited that it is unnecessary to pursue it farther.
The rights of the parties, as the case is now made, appear to be the following: Mrs. Bates, or Mrs. Bertrand and Mrs. Kayser,_are
The foregoing considerations lead to a reversal of the interlocutory judgment.
Judgment reversed and new trial ordered, with costs to abide the event.
Van Brunt, P. J., Rumsey and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.
Rote.— On 'a motion for ifeargument it was suggested that Jean B. Virolet died before Mrs. Hoyt, the life tenant, and that hence his widow was not entitled to dower. There being a misunderstanding as to the date of the death of Mr. Virolet. the court declared that the question of dower should remain open to be determined upon the proof as it might be made on a new trial.