78 A.D. 56 | N.Y. App. Div. | 1903
Lead Opinion
The parties to this record by a submission of their controversy under section 1279 of the Code of Civil Procedure seek a judicial construction of the 7th clause of the will of Clifford A. Hand, who died in August, 1901. The will was admitted to probate by the surrogate of New York county on the 14th of September, 1901. The testator was a lawyer who had practiced his profession for over forty-five years in the. city of New York. He was married but had no children. He had two brothers, Samuel Hand, who died May 21,1886, and the defendant Eichard L. Hand. Samuel Hand left a widow, the defendant Lydia L. Hand, and two children, the defendants Learned Hand and Lydia Hand Hun. The present controversy relates to the interests acquired under the will by Eichard L. Hand on the one side, and the children of Samuel Hand on the other. Samuel Hand left a last will and testament which was duly admitted to probate, but as we view this case it is unnecessary to refer particularly to its provisions. The questions arising on the submission in no way affect the interest of the widow of Clifford A. Hand and, therefore, she is not a party to it.
The matters presented for decision on this submission may be best considered upon two contentions very clearly made and very ably argued on behalf of the defendant Bichard L. Hand as to the proper judicial construction to be given to that part of the 7th clause of the will above quoted which disposes of remainder interests after the expiration of the trust created for the benefit of the testator’s widow. Those contentions arQ,f/rst, that a joint tenancy was created of the remainder, and that Samuel Hand having predeceased the testator, the share in the real and personal estate embraced in the remainder which would have passed to Samuel Hand, had he been living, goes to Bichard L. Hand by survivorship; and, second, if a joint tenancy were not created in the remainder, then Samuel
First. We find nothing in this will which would prevent the application to the gift of the remainder of the provisions of the Eevised Statutes (1 R. S. 727, § 44), now constituting section 56 of the Eeal Property Law (Laws of 1896, chap. 547), by which it is enacted that “ Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.” We think it is plain that the testator meant that his brothers should take, each separately and in his own right, and that the gift is not to a class. Matter of Kimberly (150 N. Y. 90) and McDonald v. McDonald (71 App. Div. 116) seem to dispose of this branch of the case. The testator was a lawyer of very great experience, and it is scarcely conceivable that if he intended to create a joint tenancy he would do otherwise than follow the requirement of the statute.
Second. We are of opinion that there is not intestacy with respect to the share in the residuary estate which Samuel Hand would have taken under the 7th clause of the will had he survived his brother Clifford. Such construction should be given to this 7th clause as will prevent intestacy, if that result can be obtained by a natural, reasonable and unstrained interpretation. (Schult v. Moll, 132 N. Y. 122; Weeks v. Cornwell, 104 id. 337; Clark v. Cammann, 160 id. 315.) It is argued that by contrasting the provisions of the 1st and 2d clauses with those of the 7th clause, it will be seen that a different dispository intention was in the mind of the testator as to the property passing by those clauses respectively. In the 2d clause the testator anticipated the death of either of his brothers in his lifetime, and in the event of either so dying, he specifically devised the share of the one dying to such of his children as should be living at the time of his, the testator’s, death, while in the 7th clause the whole of the residuary estate is given to the two brothers who or whose “ representatives or assigns are to be entitled to possession and enjoyment thereof upon and after the decease ” of the testator’s wife.
We are, therefore, of the opinion that, subject to the power of appointment given to the testator’s widow, and upon her death Richard L. Hand is entitled to receive one-half of the residuary estate disposed of by the 7th clause, and that Lydia M. Hand Hun and Learned Hand are entitled to receive the other half in equal portions. Judgment is directed accordingly.
Yak Brunt, P. J., O’Brien and Laughlin, JJ., concurred; McLaughlin, J., dissented.
Sic.
Dissenting Opinion
I concur with Mr. Justice Patterson, in so far as he holds that the testator intended that his brothers Samuel and Richard should take, each separately and in his own right and not as joint tenants, the property given in the 7th clause of his will, but I cannot concur with him that subject to the power of appointment given to his widow, the testator intended to substitute children for a parent, if
“ Seventh. All the residue of my estate and property of whatsoever nature and wheresoever situate, of or to which I may die seized, possessed or entitled, I give, devise and bequeath the same to the executors of this, my will, upon trust to receive the income thereof and to apply the net income realized therefrom to the use of my wife Maria L. Hand during her natural life, and upon her decease to pay over and transfer a part or parts of the principal, not exceeding in> aggregate ten thousand dollars, to such of the then living lineal descendants of my wife or of my father, as by her last will and testament my wife may direct and appoint — and subject to the life use therein of my wife and the exercise by her of the said power of appointment, I give, devise and bequeath the beneficial right and title in and to my said residuary estate to my two brothers, Samuel and Richard, who or whose representatives or assigns are to be entitled to possession and enjoyment thereof upon and after the decease of my wife.”
In this clause it will be noticed that there is an absolute gift to Samuel and Richard, subject only to the provision for the wife, with a limited power of appointment. This must be so, unless it be held that the words “ who or whose representatives or assigns,” or some one of them, amount to a substitution of the children or executrix of Samuel (he having died before the testator) for himself. These words I do not think amount to a substitution, and to hold that they do is, as it seems to me, to put into the will something which does not there appear, by giving effect and meaning to words not sanctioned by common usage or by grammatical or judicial construction. The word “ who ” plainly only refers to Samuel and Richard, and the same is equally true of the word “ whose.” The word “ assigns ” means only the assigns of Samuel and Richard, and, indeed, this is ■conceded in the prevailing opinion. We have left, therefore, only one word — “ representatives ” — and it is from this one word alone that it is said that the testator intended, in case of the death of oné of his brothers before him, to substitute the children for the brother. This goes much farther than any of the cases of which
I am of the opinion that the gift in the Yth clause is to Samuel and Richard, one-half to each. Samuel having died during the lifetime of the testator, caused the interest given to him to lapse, and as to that interest the testator died intestate and judgment should be directed accordingly.
Judgment ordered as directed in opinion.
