186 A.D. 569 | N.Y. App. Div. | 1919
Levi E. Waterbury left a last will and testament in which, after providing for the payment of his debts, he gave to his wife the life use of the house and lot where they resided, together with the furniture and fixtures, and $1,000 in money and one-half of the net income of a certain farm. These were in lieu of dower, and have no bearing upon the question here involved, except as a part of the environment of the remaining provisions of the will. The wife predeceased the testator, and the property fell into the residuary estate. He then gave to his son-in-law (the husband of Charlotte A. Erwin) the sum of $1,000, and in the 3d paragraph of the will-provided: “ I will and bequeath the rest and residue of all my property both real and personal to my daughter Charlotte A. Erwin, but in case of her death without further issue I will and bequeath all that is given to her to Gertie M. Erwin, but in case of the death of Gertie M. Erwin without leaving any issue, then I will and bequeath it to my brothers & sister children, P. H. Waterbury, William H. Waterbury and Sarah A. Wright to share and share alike.”
The will then appoints Charlotte A. Erwin executrix, and closes with the formal clauses, without further provisions tending in any manner to throw light upon the intention of the testator; and the learned court below has held that the true construction of the 3d paragraph of this will is that it refers to death at any time, with the result that the title to this estate is indefinitely held in suspension. The plaintiff, who has been in undisturbed possession of the property from the death of the testator in 1893, appeals from the judgment, and urges that the true construction of the will is that the title vested in Charlotte A. Erwin; that the deaths referred to were deaths preceding the death of the «testator, and that the
The learned trial court admits that the rule contended for by the plaintiff is approved, but urges that it “ yields easily to any fact or circumstance indicating a different intention,” and then upon the supposed authority of Nellis v. Nellis (99 N. Y. 505); Vanderzee v. Slingerland (103 id. 47) and Matter of Cramer (59 App. Div. 541) reaches the conclusion that “ in the case at bar the gift is not absolute; the qualification is not only in the same clause, but the same sentence.”
We are unable to find the qualification either in the same clause or the same sentence, nor yet in any other portion of the will. The 3d paragraph makes no mention of any other clause. Charlotte A. Erwin appears to have been the only daughter of the testator, and that good relations existed in the family is evidenced by the gift of $1,000 to the husband of Charlotte A. Erwin, the son-in-law of the testator. Charlotte A. Erwin, at the time the will was executed, was about forty years of age, and had one daughter, Gertie M. Erwin. Adequate provision was made for the wife in the 1st paragraph, and then there was the provision that “ I will and bequeath the rest and residue of all my property both real and personal to my daughter Charlotte A. Erwin.” Clearly, if the language ended here there would be no question; there was an absolute and unqualified gift of the remainder of the estate, without duty or obligation of any kind attaching, and the rule is well established that courts refuse to cut down an estate already granted in fee or absolutely when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not in themselves clear, unmistakable and certain, so that there can be< no doubt of the meaning and intention of the testator. (Washbon v. Cope, 144 N. Y. 287, 297, and authorities there cited.) Is there any such “ clear, unmistakable and certain” limitation in this will? Is there, in fact, any limitation whatever? “ But,” says the testator, “ in case of her death without further issue [that is, in case of the death of Charlotte A. Erwin without other children than Gertie M. Erwin before this will becomes operative] I will and bequeath all that is given to her to Gertie M. Erwin.” He not only gives the property to his daughter in the first clause, but he refers to it as “ all that
In the case before us, not only is the natural import of the language clearly in favor of the general rule, but there is no language, and no provision, which in any degree indicate a contrary purpose. The evident purpose of the testator was to take care of his daughter and his daughter’s daughter. To accomplish this he gave primarily to his daughter, and, in the event of her death, without further issue, to his daughter’s daughter. If it vested in the daughter at his death then both results were accomplished. If the daughter predeceased him, leaving no issue, then the secondary result was accomplished by giving “ all that is given to her to Gertie M. Erwin.” There is not the slightest intention expressed in the will to make any provision for the children of his brothers and sister, except in the event of the property not vesting in one of his direct descendants; and to read into this will an exception to the general rule is to make a disposition of this property which was never contemplated by the testator, and for which there is not the slightest justification in the language used.
The question here under consideration was not involved in Matter of Cramer (59 App. Div. 541), and in Matter of Russell (168 N. Y. 169, 178, 179) the court again asserts the general rule, and declares that “ this rule yields only to clear language in the instrument indicating that the testator referred to a death at some other time,” and deprecates the tendency of courts to give to the dispositions of property “ an exceptional legal character.” An exception to a general rule should not be extended to a doubtful case; the established order should be preserved unless there is controlling reason to the contrary, and it is not the duty of courts to be astute in the discovery of means of defeating the declared purposes of testators or legislators by a resort to rules of construction designed merely to aid in arriving at the real intention of language used where there is uncertainty or
The judgment appealed from should be reversed, with costs.
All concurred.
Judgment reversed, with costs, and judgment directed as per opinion.