7 N.Y.S. 264 | N.Y. Sup. Ct. | 1889
The judgment giv.es construction to the will of Mrs. Phebe
A. Ennis, the mother of the two parties to this appeal. The other parties defendant in the action were the husband and another daughter of the deceased. By the first clause of her will the testatrix gives to the plaintiff absolutely all her household goods, including furniture, carpets, and silver-ware. By the second clause she gives the residue of her property, consisting of a farm and all her personal property other than that included in the first bequest, one-half to the plaintiff, if she remains unmarried, and the other half in equal shares to the other two children, the appellant, and a daughter, Mrs. Char-, lotte Olivia Pendry; but, in case of the marriage of the plaintiff, the property mentioned in this clause is to be equally divided between the three children, share and share alike. The third and fourth clauses of the will are as follows: “Third. If my daughter Kate S. should marry, and die without children, or die previous to her brother or sister, then the property given or bequeathed her shall revert to her brother B. Franklin, and her sister C. Olivia, or their heirs, and to share alike. Fourth. The foregoing bequests are based upon the provision that my three children conjointly or by mutual arrangement make suitable and adequate provision for the support and maintenance of my husband, Elijah Ennis, their father, during his life, and that suitable tombstones be procured and set up at his and my graves. Likewise I make, constitute, and appoint my daughter Kate S. Ennis to be executrix of this my last will and testament. * * *”
The plaintiff married after the death of her mother, and before the com-' mencement of this action, but has remained thus far without issue. The question is of the nature and extent of the plaintiff’s estate and interest in one-third of the real estate, and of the personal property, aside from that included in the first bequest,—whether such estate and interest is absolute or conditional. It is unnecessary to review, or even to cite, the numerous authorities establishing the rule which the referee has applied to this case. The cases are well collated and classified by Andrews, J., in Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. Rep. 247, where the rule, with its limitations, is clearly stated; and the same views are expressed, and the same result is reached, by Rapadlo, J., in the case of In re Railway Co., 105 N. Y. 89, 11 N. E. Rep. 492. The rule is that when there is a devise to one person in fee, and, in case of his death, to another, the contingency referred to is the death of the first devisee in the life-time of the testator; and if such devisee survives the testator he takes an absolute fee. Judge Rapadlo says in the
But, even if our construction of the alternative provision of the devise were not the true one, we think “other circumstances in the will” are sufficient to take this case out of the general rule laid down by the authorities referred to. There is the reiteration of the intention of the testatrix, in the third clause, which is a circumstance of the same character, and of at least equal significance, with that which seems to .have warranted the judgment of the court in the case of In re Railway Co., supra. The language here is: “By tiiis I intend that the bequest to Kate S., circumstanced as above stated, shall pass to my son and daughter,” etc. “Circumstanced as above stated” is equivalent to “ under the circumstances, or upon the contingencies, above expressed, ” and the language serves to exclude the idea that other contingencies were to be added by legal construction or otherwise. The reiteration was made—as is said by Rapallo, J., in Re Railway Co. Case—“as if to indicate that no other contingency was contemplated than the one which she had expressed.” Moreover, all the provisions of the fourth clause of the will are such as to indicate an expectation on the part of the testatrix that the plaintiff would sur
The judgment appealed from adjudges that the three devisees take their respective shares and interests in the residue of the property, subject to the duty and obligation enjoined by the fourth clause of the will, to make suitable provision for the support and maintenance of their father during his life; and it directs that they make such required provision within two months from notice of the judgment, or, in default thereof, the executrix make such provision out of the estate of the testatrix in her hands. Neither party seems to be content with this provision of the judgment, although the plaintiff has not appealed therefrom. The defendant concedes the correctness of the judgment to the effect that all the devises and bequests of the will are subject to the requirement of the fourth clause, but objects that, in ease of disagreement between the three devisees, the making of such provision should not be left to the sole judgment and discretion of the plaintiff; and he suggests, in case of such disagreement, a reference to ascertain what would be a suitable and adequate provision for the purpose in question. We think the suggestion a proper one, and such a direction will be given in the order for the modification of the judgment. The judgment should be modified in accordance with the views expressed in this opinion; the order for such modification to be settled by Dwight, J. All concur. So ordered.