78 N.Y.S. 899 | N.Y. Sup. Ct. | 1902
The testator bequeathed and devised the bulk of his estate, real and personal, to his executors in trust to collect the income and pay the same to the widow for life. By a subsequent clause he divided the said trust property into six undivided equal shares upon the death of the widow, and then by separate clauses bequeathed and devised one of such shares to each of his five grandchildren and to his daughter; the formal words of bequest and devise to the daughter being the same as in the case of each grandchild, but followed by additional words, all being as follows:
“ The other of such equal shares or portions, I give, devise and bequeath to my daughter Eliza Davis, free from all claims of any creditor or creditors, and should in the opinion of my executor, the said income be at any time in danger of being levied upon, or be levied upon by a judgment creditor, or other creditor, by any proceeding whatever, then I direct that said income shall cease as to my said daughter and the same be divided into as many equal parts as there are children born of her body, then in being, and each of such children shall then receive one of such equal shares or portions.”
The question is whether the daughter by this clause takes an absolute fee. I think she does. The rule of construction of wills to which all other rules must bend is that the expressed intention of the testator as manifested by the entire contents of the will must prevail. Artificial rules of construction may not be. resorted to
But if the clause in question expresses anything, it is at best of such doubtful meaning that it has to be construed by the aid of the artificial rule that where there is primarily a clear devise in fee, such estate will not be lessened by subsequent words of ambiguous or doubtful meaning (Benson v. Corbin, 145 N. Y. 351).
The next clause of the will fully reveals that the testator was seeking to prevent his daughter’s creditors, present or future, from collecting their claims out of any of his estate which should “ vest ” in her either by the terms of the will, or by “ force of any law or statute ”, for he there so provides in so many words, and that is the entire contents of such clause, which was evidently inserted
Let judgment be entered that the daughter took an absolute fee. under the will.