4 N.Y.S. 288 | N.Y. Sup. Ct. | 1889
This is an action of ejectment brought by the plaintiff to recover possession of a parcel of land of about 20 acres, and resulted in a verdict, directed by the court, in favor of the plaintiff, that he recover the possession in fee of the premises, with $180 for the use and occupation, and judgment was "entered upon such verdict, and the defendant appeals therefrom to this court. The plaintiff and defendant were nephews of Smith Shaw, who, in the year 1871, and thereafter to his decease, was the owner of two farms, one known as the “Wooley Earm,” which was conveyed by Samuel Wooley and wife to Sherman Griswold, May 1, 1825. The same premises were conveyed by Sherman Griswold and wife to Smith Shaw, May 1,1833. The other farm was the one upon which Smith Shaw resided many years previous to and at the time of his death, and was known as the “Smith Shaw Earm,” or “Home Earm.” The farms were adjacent, and constituted one tract of land, and were used for farming purposes, but cultivated as separate farms. In 1871, by some arrangement between the said Smith Shaw and the plaintiff, the latter went into the occupancy of ttiefarm known as the “Wooley Farm,” and continued there until the death of his uncle, Smith Shaw. The same year, the defendantLamphere, at the solicitation of Smith Shaw, went to reside upon the Home farm with his uncle, and cultivated that farm under an arrangement entered into between Smith Shaw and the defendant, the terms of which are not material. The defendant continued there until the death of Smith Shaw, and is still in the occupancy of the farm. The parcel of land in controversy is situated upon the west side of the “Wooley Farm,” so called, and is adjacent to the “Home Farm, ” so designated; and it is conceded that such parcel of land was purchased by Smith Shaw as a part of the Wooley farm, and was conveyed to him by Sherman Griswold and wife, by the deed before mentioned. The parcel of land in controversy was known as the “Swamp or Pasture Lot.” Soon after the defendant Lamphere went to live upon the Home farm, Smith Shaw directed the construction of a fence upon the east line of the parcel of land in dispute, which was built by Lamphere, by which that lot became included in the Home farm, and was ever after used as a part thereof. Upon the trial, a witness, by the name of Anna Ferguson, was allowed to state a conversation between herself and Smith Shaw, which occurred in 1873, as follows: “ Question. Did you have an interview when he spoke of having taken
Sixth. “I give, devise, and bequeath to James M. Lamphere, his heirs and assigns forever, all my said farm situated in the town of Austerlitz, Columbia county,- jST. Y., and containing about one hundred and forty acres of land, with the appurtenances thereunto belonging, being the farm on which said Lamphere now resides, to have and to hold the same to said Lamphere, his heirs and assigns forever, subject, however, to the life-estate of my said sister, Happy Shaw, therein, and to the payment of the several sums and legacies hereinbefore charged against the same. Seventh. I give, devise, and bequeath to Alexander Chace, his heirs and assigns forever, all my said farm situated in the town of Austerlitz, Columbia county, H. T., and containing about one hundred and seventy-four and three-quarters acres of land, called -the ‘Wooley Farm,’ which I purchased of Sherman Griswold, and on which farm said Chace now resides, together with the personal property now on ■said farm, to have and to hold the same to said Chace, his heirs and assigns forever, subject, however, to the payment of the annuity of fifty dollars each year to my said sister, Happy Shaw, with which said farm is hereinbefore ■charged, and is hereby charged, and also subject to the payment of the several sums and legacies hereinbefore charged against said farm.” At the close of the evidence, and after hearing counsel, the learned justice stated, among other things, the following: “We have, then, two clauses in this will which, in my opinion, are inconsistent and irreconcilable. By the sixth, in unambiguous language, he devises the premises in question to James M. Lamphere; ■by the seventh, in language equally as definite, he devises the premises to Alexander Chace. If it were possible to reconcile these two clauses, the ■court should do so, and should look at the whole scope and intention of the will for that purpose. It was with that view that I admitted the testimony yesterday of the declarations of the testator, in respect to the severance of this piece of land from the Wooley farm, reserving any expression of opinion of the effect of that testimony upon the main question to be considered. If these two clauses were not free from ambiguity, I think that the testimony would aid somewhat in reconciling the inconsistency, and enable us to determine the intention of the testator; but it can have no force whatever, in my opinion, except where there is an ambiguity of language. This, then, seems to me to be a case for the application of a rule. Xvhere the will contains two clauses, which, upon any rational interpretation, are irreconcilable and inconsistent, the latter clause must prevail over the former, as expressing the last intent of the testator. I am aware that rule is not applied where it is possible to reasonably reconcile the two clauses; but it seems to me that here they are utterly irreconcilable. By the one he clearly devises this piece of land to the defendant; by the other, to the plaintiff. I am therefore of the opinion that the latter clause in the will must prevail, and that the plaintiff, Alexander Chace, is entitled to the possession of the so-called ‘ Pasture Lot,’ described in the complaint, and grant the plaintiff’s motion in that respect, and deny the motion for the defendant. ”
We feel constrained to differ with the learned justice who tried the cause at the circuit in regard to the necessity of resorting to the rule whicli he adopted in deciding the cause, by holding that the two clauses of the will were wholly irreconcilable, and that there was no ambiguity in the language employed in framing such clauses, and that, consequently, the paroi evidence which had been received could not be considered in aid of the construction of the will, and, as a necessary result, that the seventh clause must be adopted as the last testamentary expression of the testator, and as conclusive in regard to the devise of the premises in controversy to the plaintiff. The
Ingalls, J., concurs.
Learned, P. J. I concur, except that I doubt whether that part of Still-man’s evidence was proper in which he speaks of testator’s intentions as to his will. This part does not appear to have been specifically objected to.