Bundy v. . Bundy
38 N.Y. 410
NY
1868
Check Treatment
Grover, J.

The questions arising upon this appeal, relate only to the rights of Mrs. Travis, acquired under the will of Laartus Bundy, her former husband. The first inquiry is, whether she takes one-half of the estate absolutely, or whether the devise thereof to the heirs, as provided by the will upon her decease, is valid. It is clear that such devise to the heirs is valid, unless, the power of disposition of the one-half is given by the will to the appellant. (Norris v. Bryen et al., 13 N. Y. 273; Tyron v. Blake, 22 N. Y. 558.) The power of disposition of the property by the appellant, is claimed from the following clause of the will: “ I will also and direct, that the said Clarissa M. and the said Ellen R. (the devisee of the other half of the estate), use respectively so much, or enjoy the use of so much, of the interest arising out of the said bonds and mortgages, or said other securities, or both, as shall be necessary and proper for their maintenance and support, and that if the interest be not sufficient,for *421 such maintenance and support, then they, or either of them, shall receive funds for such support from the principal so invested.” It is argued by the counsel for the appellant, that the entire principal may be exhausted for the necessary support of the appellant. This is true, but this is not sufficient. The power of disposing of the entire fund is not established unless the appellant is herself to determine the amount necessary for that purpose. This power is not given to her by the will, and, consequently, the amount is to be otherwise determined, and she has no power of disposition over any portion of the fund except what shall be paid to her pursuant to such determination. It follows, that, in the event of the death of the appellant without heirs, as expressed in the will, the devise to the heirs-at-law of the testator’s mother will take effect. This brings us to the question whether the testator used the term “ heirs ” in its ordinary general sense, including collateral as well as lineal heirs, or whether including only the latter. The presumption is, that it was used in the former sense, that being the appropriate meaning, and this presumption must be adopted unless it clearly appears from the will, and the extrinsic facts known to the testator, that it was used by him in the restricted sense. In the same clause of the will in which the word is used as applicable to the appellant, the same word to effectuate the same purpose is used by the testator in reference to the devise to his niece, Ellen It. Bundy. As applied to the latter devise, it clearly appears to have been used by the testator in its restricted sense, and as including lineal heirs only as the devise over is to the heirs-at-law of his mother, who Avould be heirs of the will, others failing if the word is to be understood in its general sense. (Norris v. Bryen, supra.) This shows that the testator understood by the vrord “ heirs,’’ lineal descendants only. He used the same word in limiting' the devise over of the property given to the appellant in the same clause of the will, and the presumption is that he used it in the same sense. This presumption is confirmed by the extrinsic facts. The appellant was only twenty-eight years of age, and there was no improbability in supposing she *422 would have issue. .It also appears, that the appellant had a father, mother, and several brothers and sisters living, and it is highly improbable that the testator contemplated an entire failure of heirs of a person so situated in her life-time, as the contingency upon which his devise over should take effect. This presumption is further strengthened by the fact, that in the devise over, the testator in designating the objects of his bounty, used the words “heirs-at-law of his mother.” This shows that he understood the latter words as more comprehensive than the word “ heirs,” and as including a class of persons not included in that word. My conclusion is, that the testator used the word “ heirs ” in the same sense in limiting the devise over of the appellant’s portion that he did in regard to his niece, and that he intended thereby, descendants of the body of each only. The judgment provides, that the executors upon giving proper security shall continue in charge of the fund. In this there is no error. The will not having designated a trustee for this purpose, it was competent for the court to appoint a trustee. This may be regarded as such appointment. The judgment appealed from must be affirmed, with costs of respondent, to be paid out of the fund.

All affirm except Mason, J.

Judgment affirmed.