Carter v. Hunt, 40 Barb. 89

Carter v. Hunt

40 Barb. 89 | N.Y. Sup. Ct. | 1863

By the Court, Welles, J.

The will of Peter Miller gave a life estate in the premises in question to Jonathan Metcalf, with remainder in fee to his daughter Sophia. Whether such remainder was vested, or contingent, depending upon the fact of a sale by Jonathan, is one of the questions to-be considered. And this depends entirely upon the question whether the testator intended, in any-event, to confer upon him a power to sell and convey the premises in fee. If the will contains such a power, the remainder was clearly contingent; if not, it was vested, and upon the death of Jonathan and of Sophia, intestate, the descent would be cast upon her heir. The will does not contain any express power to sell, but it is claimed on behalf of the defendants that it does contain such power by implication.

After the best examination and consideration which I have been able to give the question I have come to the conclusion that no such power is to be found in the will, either express or implied. If it can be discovered, by an examination of the whole will, that the testator intended to confer upon his son-in-law, Jonathan Metcalf, the power to sell and convey the premises in fee, such intention must prevail, although it may involve an apparent repugnancy with other provisions, and although the consequence may be to defeat the remainder given to Sophia. In the interpretation of wills, such construction is to be given as to give effect to every expression the will contains, if it may be done; and to adopt such a construction, if possible, as shall harmonize the different parts and provisions without.violating the plain and obvious intention of the testator. This, I think, can be done in the present case.

It will be seen by the clause of the will o.ut of which these questions arise, that while the testator desired to provide to *92some extent for Mrs. Howe by allowing her the use of one of the rooms of the house, he did not intend thereby to prohibit his son-in-law from exercising his right to sell or lease his life estate which had been given, or, in case of such sale or lease, from giving full possession. He would have the undoubted right to sell his life estate, in case nothing had' been said in the will about selling ; but to preclude all question and controversy which might arise in case the interest of the two devisees—his son-in-law and grand-daughter—might be promoted by leasing or selling, and in either case, of giving full possession, he inserts the clause which the defendants claim includes an implied power to sell, by way of qualifying the provision for Mrs. Howe and of determining or putting an end to her right to the possession of the room he had assigned her. After giving in explicit terms the life estate to Jonathan and the remainder in fee to Sophia, the testator proceeds immediately as follows: “ It is my wish, however, that so long as the house shall remain in the actual occupation of said Jonathan, and his sister Elizabeth Howe shall remain a widow and otherwise unprovided for, that the said Elizabeth shall have the free and full use of the east chamber thereof for her sole and individual purpose, but nothing herein contained shall be construed to prevent the said Jonathan from leasing and selling the said house and lot, and the giving full possession thereof, whenever his and his daughter’s interest may be promoted thereby.”

It seems quite clear to me that the language cannot be tortured into a power to sell in fee, but that it can be regarded only as a proviso, unnecessarily inserted as I think, but clone by way of abundant caution, with a view to limit Mrs. Howe’s right to the possession of the east chamber of the house in the event of his selling or leasing his life estate.

This view leaves all the parts of the fourth clause of the will in perfect harmony, and secures to the testator’s granddaughter a vested remainder in fee, which I think was his intention.

*93[Monroe General Term, September 7, 1863.

Upon the death of Sophia Carter intestate, her estate in remainder descended to her daughter Hattie Sophia, her only child and heir at law. By the death of Hattie the same estate was cast upon the plaintiff, her father, and upon the death of Jonathan Metcalf, the tenant for life, the particular estate upon which the remainder rested was terminated and the remainder then in the plaintiff became a fee simple absolute, as the justice who tried the cause has found.

A point is now made in behalf of the defendant Joseph Metcalf, to the effect that he was not in possession of the premises at the time of the commencement of the action, and that they were in the actual occupation of the defendant Hunt. It appeared that the defendant Hunt was in possession under the defendant Metcalf, who then claimed to have some title or interest in the premises adverse to the . plaintiff. This objection, if taken in season, would, under the revised statutes, have been available to the defendant Metcalf, (2 R. S. 304, § 4;) but I think it comes too late. From all I can discover in the papers, this is the first time the question has been raised or alluded to. If it had been taken at the trial non constat but the objection might have been obviated, or that the plaintiff would have taken judgment against Hunt alone.

But the 118th section of the code provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of settlement of the questions involved therein. This provision amply justified the plaintiff in making Joseph Metcalf a party defendant. The judgment should be affirmed.

Ordered accordingly.

E. Darwin Smith, Johnson and Welles, Justices.]