101 N.Y.S. 875 | N.Y. Sup. Ct. | 1906
The real property described in the complaint belonged to James Creegan in his lifetime. He died June 13, 1898, leaving a will which was admitted to probate in the Surrogate’s Court of Orange county on the 22d day of October, 1898. It contained, among others, the following provisions: “ I give, devise and bequeath unto my beloved wife, Bedelía M. Creegan (who by her faithful co-operation and prudence during many years past has so materially assisted me in the accumulation of property) all my estate both real and personal wheresoever situated, to be by her used and disposed of during her natural life precisely the same as I might do were I living.” On June 30, 1900, Bedelía Creegan executed her last will and testament, and died shortly afterward. At the time of her death the real property referred to had not been sold or conveyed. Her will was proved in the Surrogate’s Court of Orange county on October 3, 1900. After making certain bequests she gives, devises and bequeathes the residue of her estate, real and personal, to the defendant, Katie Gunning. Subsequently to the death of Bedelía Creegan, and pursuant to a decree of the Surrogate’s Court of Orange county, the real property described in the complaint was sold to pay James Creegan’s debts. The rights of the parties to this action to share in the surplus proceeds of the sale thereof, and als< in the accumulated rents, are in controversy here and a]f to be determined by a construction of James Creegan’s will. If this will gave to Bedelía Creegan a life estate in his prop erty, with an absolute power of disposition unaccompanied by a trust, her estate became a fee absolute, subject to any future estates limited thereon in case the power was not executed. Eeal Property Laws (3 Gumming & Gilbert, General Laws) 3301, § 129. Both parties concede that under
Intention is the absolute criterion of construction when applied to wills. Crozier v. Bray, 120 N. Y. 366, 375. Intent is to be ascertained by the construction of the whole instrument, and effect must be given if possible to all of its provisions. Taggart v. Murray, 53 N. Y. 233, 236. If we examine the will for the declaration of his intent, it is apparent that the first purpose of the testator was to provide for the comfortable- support and maintenance of his wife. He directs that his entire estate real and personal shall be used by her. He gives her full power and authority to sell, exchange, invest, reinvest and use the same or any part thereof in any manner as to her shall seem best. The restriction imposed that his debts must be paid was an unnecessary one, as the law would impose that condition in the absence of any direction from him. So, too, the condition as to her remarriage affected only the portion of the estate given to her, and not the extent of her interest therein. That it was his purpose to provide for her comfort is further
Judgment for defendant.