3 N.Y.S. 688 | N.Y. Sup. Ct. | 1889
We think the defendants’ contention is supported by the current of authorities, and clearly so by the decisions of the courts of this state. The construction which has been given in similar provisions in other wills requires us to hold that Mrs. Gris-wold took an absolute and unqualified title to the real and personal property of the testator, after applying so much of the personal property as was necessary to carry out the special provisions of the will relative to the erection of monuments on the cemetery lots. The words of the grant are sufficient to convey a title in fee to the devisee of the lands, as those words would have vested a fee-simple in the donee without the aid of the statute, which declares that every grant or devise of real estate, or any interest therein, shall pass on the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or necessary implication. 1 Rev. tit. p. 748, § 1. A gift of land by will, with an absolute'power to sell and convey the same by the devisee, without any subsequent provision or words to qualify the power to sell, is a gift in fee-simple. That case is brought within the rule of the statute making all devises with absolute power of disposal in the devisee gifts in fee.
In considering the other question presented, whether the legatee took more than a life-estate in the personal property, we find nothing in the provisions of the will which controls or limits the right of the legatee to use the same as her own absolute property, except the provision which requires her to use so much thereof as was necessary to carry into effect the provisions for erecting monuments on the cemetery lots. The other special provisions mentioned in tiie will, by which the legatee was at liberty to apply the property, were for her own personal benefit in repairing her separate estate, and in paying the wages of persons in her employ. If we eliminate from the clauses of the will relative to the bequests of the personal property the words used by the testator in giving directions for the special uses to which a portion of the personal property was directed to be applied, the language of the gift would read as follows: “1 give and bequeath to my wife the full and absolute use and control of all my personal estate, to be held, used, and enjoyed by her for any and all purposes which she sees fit to use the same.” This comprehensive language vested in the legatee an absolute title, and gave her the unqualified power to use and dispose of the same in her life-time, or to bequeath the same by will, and, if she did neither, then the same would, by operation of law, go to her next of kin, unless by other words or provisions of the will the legal effect of these words is changed or limited. The only provision indicating
This result is entirely consistent with the cases cited by the learned counsel for the plaintiff. In Terry v. Wiggins, 47 N. Y. 512, it was held that a gift to the primary devisee in the will then under consideration was for her lifetime only, with a right vested in her to sell and dispose of any part of the property during her life-time for her use and maintenance, and that she had ño absolute right of disposition, and for that reason the power of sale was limited to her life-time, and so much of the real estate as remained unsold at the time of her death did not descend to her heirs at law, but vested in the ultimate devisee named in the will. In that case the provision of the will under consideration was as follows: “I hereby bequeath to my wife, Hannah Youngs, all real and personal estate and effects that I may die possessed of, for her own personal use and maintenance, with full power to sell or otherwise dispose of the same in part or in whole, if she should require it, or deem it expedient so to do, and, after her decease, the residue that may be left of the personal and