55 N.Y.S. 1086 | N.Y. Sup. Ct. | 1899
This is an action brought to obtain partition and sale of certain premises in the town of Marbletown, Ulster county. The only question litigated before me has been as to the parties who took under a certain clause of the will of one John D. Wilklow who died on February 22, 1881, seized of the premises in question.
The premises described in the complaint were devised in that will as follows: “ I give and bequeath to my daughter Sarah Eliza Wilklow all (describing the premises in question), to have and to hold the same forever, if the said Sarah Eliza dies with living issue, but if she dies without living issue, then from and immediately after her decease I give and bequeath the same to my children to share and share equally and alike.”
At the time of the death of John D. Wilklow, the testator, he left eight children surviving him besides Sarah Eliza. Sarah Eliza died without leaving living lawful issue in February, 1898. Subsequently to the death of John D. Wilklow, and prior to the death of Sarah Eliza, and on April 16, 1891, Mary A. Ten Hagen, one of the children of John D. Wilklow, died. She left a last will and testament which was duly admitted to probate and in which she devised to her husband Henry Ten Hagen all her real estate. The plaintiff and the defendant, tenants in common, claim that Mary A. Ten Hagen took no share of this real estate in question under the will of John D. Wilklow, and that there are only seven shares or tenants in common in said real estate. Henry Ten Hagen puts in an answer and claims that his wife was seized of an interest which was devisable and that as the devisee of his wife he is entitled to an undivided one-eighth interest in the premises in question.
The only question then before me is whether there are seven shares or interests or eight shares or interests in such real estate. The provision in the will of John D. Wilklow was a contingent devise to a class. In the Matter of Baer, 147 N. Y. 348, the provisions of the will were very like the one in question. There, one Gromez, left a will in which the property in question was disposed of by the residuary clause wherein testatrix devised same to her executors as trustees in trust for the use of her daughter Emeline; in case of her death leaving issue to convey the same to such issue; in case Emeline died without issue the trustees were directed to apply the rents and profits of the property for the use and support of the other daughter Matilda during her natural life, and upon her death to convey the same “ to the children and lawful heirs of
These are the rules of construction that must be taken in cases of this kind unless some different meaning of the testator can be ascertained from the context of the will. I can gather no different meaning from the whole will before me. The words “ from and immediately after her decease” refer, to Sarah Eliza, and «would seem to lend additional strength to the rule that the testator intended the premises in question to go to the children living at the time of Sarah Eliza’s death. Time may be said to enter into the substance of a gift or devise when the existence of such a gift or
The defendant Henry Ten Hagen relies largely upon the case of Hennessy v. Patterson, 85 N. Y. 91, to sustain his contention that he as devisee under the will of Mary A. Ten Hagen, is entitled to a one-eighth interest in the property in question. But the will in that case provided in effect for two life estates, and if the second life tenant left no issue then the premises in question were devised to one John Foley. The second life tenant left no issue, hut Foley died prior to the second life tenant. The court held that Foley took a contingent interest which vested in him as a right upon the death of the testator, and which descended to his heirs. The difference between that case and this is that that was a devise to a certain person. It was not a devise to a class. Courts are inclined to give that construction to a will which will prevent a whole or partial intestacy rather than have the particular estate pass by the laws of descent. By that clause of the will in that case John Foley must necessarily have taken an interest else there was no residuary devisee. That is not this case. Here there was a class of seven children living at the time of the decease of Sarah Eliza which satisfied the terms of the particular clause in question in this will
I hold, therefore, that there are only seven shares or interests in this real estate in question and that Henry Ten Hagen, as devisee of his wife or otherwise, has no share or interest therein.
An interlocutory judgment in partition may be handed up in accordance with this memorandum.
Ordered accordingly.