7 N.Y.S. 30 | N.Y. Sup. Ct. | 1889
The importance of this case demands that I should state the
reasons for my conclusions. My time has been so occupied with other engagements since the submission of the case to me that 1 shall be compelled to state them briefly. In reaching the conclusion that the will of Mr. Greene is valid, I have been obliged to make very free use of the doctrine laid down in the opinion of Judge Finch in Phillips v. Davies, 92 N. Y. 204, to-wit: If the plain and definite purposes of a will are endangered by inapt or inaccurate modes of expression, and we are sure that we know what the testator means, we have the right, and it is our duty, to subordinate the language to the intention. We may reject words and limitations, supply them, or transpose them, to get at the correct meaning. This will should be construed so as to uphold all of its provisions, unless in doing so violence is done to the natural and proper meaning of its provisions. It is clear that it was the testator’s wish that the land in controversy should ultimately goto his three sons, John B., Harry B., and Samuel B. This is not controverted by the plaintiff. His contention is that the lands devised to the three sons was a future estate, limited to come into their possession at the expiration of six years from and after the death of the testator, and that during this period of six years the title was in them as trustees. If this is a correct construction of the will, then it is unquestionably void, so far as the land in controversy is concerned, as violative of the laws against perpetuities. The testator was a lawyer of long and large experience, and it would be quite remarkable if he was not familiar with the statute relating to the suspension of the power of alienation. I think I must assume that a lawyer of 40 years’ standing could not have been ignorant of this law, although it is quite surprising, if he had the stat
The real estate consisted of a valuable lot upon Main and Washington streets, covered by valuable buildings, producing large revenue in the way of rents. It was evidently a desire of the testator that this property should be retained by the three sons, without any division thereof. He gave them, as trustees, power to sell, convey, and dispose of any of the real estate not specifically devised, on condition that the proceeds of such sale should be retained by them, unless it became necessary to use the same for the purpose of paying off the legacies. It would not seem that a lawyer of Ins experience would have provided so serious a penalty for an attempt to partition the property in question during the six years mentioned in his will, if he understood the title was for that period in trustees. If, however, it was his intention that the title should immediately vest in them, subject to the payment of the specific legacies, it was natural for him to wish to restrain a partition thereof for the period named. Again, no provision is made in the will for the contingency of the death of the three sons, or either of them, during the six years. If he intended that the title should not vest in them until the end of the six years, and he had given the situation any reflection, he would have made provision for the contingency of the death of either or all of the sons; and it is very improbable that he would purposely leave any portion of his property thus undisposed of. Mr. Greene states in his explanatory and qualifying clause that he did not think it would become necessary to mortgage the lands in question in order to carry out the provisions of his will, but he provides that, should
I am not satisfied from the evidence that the plaintiff was sufficiently aware of his rights and interests in the premises under the will, so that the doctrine of election should be applied to him. There is no question as to the execution of the antenuptial agreement. The only question is as to its delivery. I think the presumption of its delivery, arising from the record thereof, is not disposed of by defendants. Mr. Greene was residing upon the lot secondly described in the complaint after the delivery of the antenuptial agreement with his wife and children, and I do not think his possession can be held to be adverse to the plaintiff. Certainly, from the evidence, not for such a length of time to bar the plaintiff from maintaining an action. The ante-nuptial agreement was executed and delivered in the year 1845. The deceased married his first wife soon thereafter, and resided upon the property described in the antenuptial agreement down to the year 1874. All of his children were born there, and two years after the death of his first wife he married again, and resided upon this property with his second wife and his infant children, the youngest of them arriving at maturity in the year 1876. But, as to the lot described in the antenuptial agreement, the plaintiff was not, at the time of the commencement of this action, in a situation to maintain partition. He had not resided upon the property for many years. His father assumed by his will to devise it to his three younger sons, and they, upon the death of the father, entered into possession of it, claiming to own it; denied and repudiated any claim of the plaintiff thereto; and there cannot be any question but at the time of the commencement of his action it was held by them adversely to the plaintiff.
The plaintiff rests his right to maintain this action upon section 1537 of the Code of Civil Procedure, which reads as follows: “A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such a devise. But in such an action the plaintiff must allege and establish that the apparent devise is void. ” This section does not afford the plaintiff relief from the common-law rule that, to maintain partition, the plaintiff must be actually or constructively in possession. His interest in this lot came to him upon the death of his mother by virtue of this antenuptial agreement. He did not inherit it from his father. The Code so far changes the common law as to permit partition in a case where the plaintiff claims to be an heir of a person who died holding and in possession of real property, even if out of possession, notwithstanding an apparent devise by the person whose heir plaintiff claims to be, provided he can establish the devise to be void. The decedent mentioned in this section is the person who died holding and in possession of real property. The mother of the plaintiff, and not his father, was the person who died holding possession of the real property. The plaintiff cannot try the question of his title in this form of action, except in a case provided for by this section of the Code. The rule of the common law was first changed by the act of 1853, which provided that “any heir or heirs claiming lands, tenements, or hereditaments by descent
My conclusion is that this provision of the Code does not reach the plaintiff’s case. Not being actually or constructively in possession of the land at the time of the commencement of this action, he cannot maintain partition. The plaintiff’s complaint must be dismissed, but, in view of the uncertainty and ambiguity of the will, it should be dismissed, without costs.