Chapin v. Marvin

12 Wend. 538 | N.Y. Sup. Ct. | 1834

By the Court,

Nelson, J.

There can be no doubt, upon reading the will in question, as to the true intent of the testator, and that is to govern if not inconsistent with the rules of law. The testator intended to effect three things: 1. To give to his wife an estate for life in the whole of the premises, if she continued a widow; 2. On her death, that the estate should go to Oliver G. Adams; and 3. That if his wife' married, a moiety of the estate should in that event, pass to Oliver G. Adams in possession. Adams took a vested remainder in the whold estate, because it depended upon a certain event, to wit, the death of the widow, who took a life estate by implication, determinable as to a moiety on the second marriage. The conditional limitation to the precedent estate, (the estate for life,) to wit, the second marriage, gave to Adams the possession of a moiety on the happening of that event. Fearne, 19, Butler’s Notes. Pages 6 and 11 of Fearne; also p. 239. As to conditional limitations generally, see Fearne, p. 9, &c.

At common law, there could have been no doubt that the remainder of the moiety of the premises in question would have been a vested remainder. An estate during widowhood of one moiety would have been created by the terms of will, and for life of the other, with remainders to Adams; the first would have been contingent, that event being uncertain; the stcond, a vested remainder. Upon this rule of construetion, if the widow had not married, she would have held the one moiety, depending upon that contingency, during life; and the event not happening, it would then have gone to the heirs of the devisor. But in construing wills, the intent of the devisor is to control; and we cannot but see that Adams was to take the whole estate upon the death of the widow. The clause disposing of the “ remaining part of my landed properly” as expressed in the will, gives what was left after taking out the estate devised to the wife upon the conditional limitation. If there had been no limitation in the will, the wife clearly, under the word, “ all my estate, real and personal,” would have taken the whole estate in fee. 18 Ves. 195. Cowp. 306, 7, 8. 9 Johns. R. 222. 6 Cruise, 192, &c. 11 Johns. R. 365. 12 id. 389. We need not cite au-thoritities to show that a vested remainder may be sold under an execution. We see no difficulty in the description of the property in the sheriff’s deed to the ancestor of the plaintiffs. The parcel admitted to be described in the plaintiffs’ declaration means, by fair construction, the premises of which the testator, Oliver Adams, died seised.

New trial denied.