13 N.Y.S. 307 | N.Y. Sup. Ct. | 1891
Charles M. Connolly died seised of certain premises, leaving him surviving Isabella S. Connolly, his widow, and the following children, his only heirs at law: James A. Connolly, Washington A. Connolly, Thomas B. Connolly, Charles M. Connolly, Jr., and Jane V. Chalfin, all of full age. He left a will bearing date the 26th of June, 1865, which was probated before the surrogate of the county of Hew York on the 2d of June, 1869, by which he devised the premises in question as follows: “Fifteenthly. I give and devise unto my beloved wife, Isabella S. Connolly, all the lands and grounds now occupied by me at Fort Washington. To have and to hold the same, with the tenements, hereditaments, and appurtenances, to her during the term of her natural life, and upon her death then I give and devise the same unto my children, share and share alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his,
The question presented is not free from difficulty, but we think it was the plain intention of the testator to devise to his son Washington A. Connolly an undivided fifth interest in fee in the premises in'question, subject to be divested by his death in the life-time of his mother, the life-tenant. A large number of authorities have been cited upon both sides of this question; which do not seem to be entirely harmonious. But as in the construction Of every testamentary instrument the will of the testator must be adopted, it necessarily follows that it is seldom that any adjudication can'be found which is exactly parallel in its facts to the. ease being considered. So we find in many of the cases cited by the defendant that there are no limitations over in ease of death, as in the case-of Byrnes v. Stilwell, 103 N. Y. 456, 9 N. E. Rep. 241, where it was held that under a devise to A. for life, and from and immediately after the death of A. a devise unto the lawful child or children of A., his or her heirs, forever, each child named took an absolute fee, subject to be diminished by the birth of other children, as tenants in common. And in the ease of Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. Rep. 247, it was held that where there is a devise or bequest to one person, and in case of his death to another, the words referred to a death in the life-time of the testator. But in the case at bar there is a devise over in case of death; and that this devise over depends upon a death occurring during the life-time of the life-tenant is apparent from the language Of the will. The life-ten ant is to hold the prem.
All concur.