42 Barb. 615 | N.Y. Sup. Ct. | 1864
By the Court,
All parts of a will, or other instrument, must be taken together in ascertaining its meaning, and no part rejected if the whole can fairly stand. (Sweet v. Chase, 2 Comst. 73.)
A devise to one person in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event the estate thus given shall go to another person, is not repugnant. The latter clause controls the former, and the general words of conveyance are to be
Catharine Sneden, the wife of the defendant, took nothing more than a life estate, and the plaintiff takes an absolute fee, on her death. Notwithstanding this' result, is the defendant entitled to a tenancy by the curtesy in the lands, and was there
seizin of the wife of an estate of inheritance ? It is claimed by the defendant that Buckworth v. Thirkell, (3 Bos. & Pul. 652, n.) is an authority in his favor, on this point. I do not think the cases quite similar. In that case the wife had an estate, but it was only liable to be defeated in case she died be-
fore arriving at the age of twenty-one years. She died before that age, and the husband was held to be entitled to a tenancy by the curtesy. Here, from the will taken together, she takes at no time but a life estate, which is to be turned into a fee only by her having a child living at her death. This condition has never happened, and at no time has she had an estate of inheritance, to be defeated by the happening of a subsequent condition, as in the case of Buckworth v. Thirkell.
Besides, the case of Weller v. Weller, (28 Barb. 589,) conflicts with that case. It is there decided that when the estate of the husband is determined by the happening of an event which defeats its further continuance, the estate in dower must be determined with it. This seems much more reasonable and just. The husband takes his estate of tenancy by the curtesy through the wife, and when her right is determined his should also be determined. There is no estate from which his tenancy by the curtesy can attach.
Judgment for the plaintiff, on the verdict, with costs.
Lott, Sbgeboom and J. F. Far tiard, Justices.]