125 N.Y.S. 286 | N.Y. App. Div. | 1910
Lead Opinion
This appeal is taken by the plaintiff and by James Burrows, one of the defendants, from a final judgment in a partition action in favor of the defendants Theiss and Campbell, dismissing the coin-
The question involved herein is whether the interest of Susan Bray under the following will is a life estate only or whether it was a fee. She was the housekeeper for Ralph Burrows, and lived in his household during the lifetime of his wife, and while the latter lived there, as well as after his wife’s death. Susan Bray’s childrent also lived in the same house. Ralph Burrows died at the city of New York August 10,1882, leaving a last will and testament, dated January 29, 1879, as follows:
“ In the Name of God, Amen, I, Ralph Burrows, of Morrisania, New York City, County and State of New York, do hereby make, publish, ordain and declare this my Last Will and Testament; that is to say:
“First. I give and bequeath to Susan Bray, widow of Richard Bray, all my real estate, with the buildings and appurtenances, together with my burial plot in Bensonia Cemetery, situate in Morrisania aforesaid, together with my household furniture and wearing apparel, together with the sum of One thousand Dollars in cash, and the interest during the term of her natural life upon the moneys now invested in two certain mortgages upon real estate now held and owned by me against Thomas S. Morris and Bernard M. Chave, respectively, to have and to hold in her own right and to her own use so long as she may live single and unmarried, said moneys in said two mortgages to be kept on investment during the lifetime of said Susan Bray, she to receive all the interest and income thereof — and in case she shall marry again, then in that case all the property herein bequeathed to her shall revert to my Estate and be distributed among my heirs at law, share and share alike.
. “ 2d. At the decease of the said Susan Bray, I direct that the moneys secured to be paid by the said two mortgages be distributed and given to my heirs at law, share and share alike, that is, as to the principal sum thereof.
“ 3d. I give and bequeath to my niece Elizabeth Hayes, daughter of my sister Mrs. Anne Hayes, of Cattrick, Yorkshire, England, the sum of One thousand Dollars cash.
“ tíh. The rest and residue of my estate I direct to be distributed between and given to my heirs at law, share and share alike.
“ 5th. I hereby nominate and appoint my friends Bernard M. Chave and Thomas S. Morris, residing at Morrisania, New York City, to be the executors of this my last Will and Testament, hereby revoking all former wills by me made.”
This will was admitted to probate October 9, 1882. The premises in question, consisting of two lots of land in the borough of the Bronx, were bought by Burrows respectively in 1860 and 1864. After his death title passed through various conveyances by Susan Bray and others until it finally was vested, at the time of the commencement of this action, in the defendants Theiss and Campbell, in the proportion of three-fourths and one-fourth. Susan Bray died, unmarried, November 20, 1906.
While the proper interpretation to be placed upon the provisions of this will is not without its embarrassments because of unskillful framing, the most reasonable one to be applied and that which is most in accordance with the expressed wishes of the testator, is that under the 1st clause of this will a fee in his real estate was devised to Susan Bray. On analysis, this clause contains (1) a gift of all his real estate to Susan Bray, together with (2) a gift of his burial plot in Bensonia Cemetery, together with (3) a gift of his household furniture and wearing apparel, together with (4) a gift of the sum of one thousand dollars in cash ; and (5) “ the interest during the term of her natural life upon the moneys now invested in two certain mortgages,” “ to have and to hold in her own right and to her own use so long as she may live single and unmarried, said moneys in said two mortgages to be kept on investment during the lifetime of said Susan Bray, she to receive all the interest and income thereof.” Then comes the general qualifying clause that in case Susan Bray should marry again, then in that case all the property bequeathed
The judgment appealed from should be affirmed, with costs to the respondents.
McLaughlin and Miller, JJ., concurred; Ingraham, P. J.,and Laughlin, J., dissented.
Dissenting Opinion
This was an action in partition. The plaintiff alleged that he is entitled to an interest in property under the will of Ralph Burrows, which was dated the 29th of January, 1879, and which was duly admitted to probate, and the question as to whether or not the plaintiff had an interest in this property depends upon the construction to be given to the 1st clause of this will, It is conceded that the testator died on the 10th day of August, 1882, seized in fee simple of the property in question; that the testator’s wife died before him and that he left no children, his heirs at law being nephews and nieces of the testator residing in England. It further appeared that prior to the death of the testator’s wife, one Susan Bray lived in the family apparently as a domestic. After the death of the testator’s wife, Susan Bray continued to live in his house until his death. After his death she continued to occupy the house until the time of her death. There is evidence that the relations between the testator and his brothers and sisters and their descendants were friendly, and continued so to the time of his death; that, he visited them in England and some of them visited him in Hew York.
I think, therefore, the plaintiff became entitled under the will of the testator to an undivided interest in this real property upon the death of Susan Bray, and that the judgment dismissing the complaint cannot stand.
As all the facts are found by the court which would entitle the plaintiff to an interlocutory judgment of partition and sale, if the construction to be given to this clause of the will, as before indicated, is correct, the judgment appealed from should be reversed and an interlocutory judgment for partition and sale in the usual form should be entered, with costs to the appellant to be paid out of the proceeds of the property.
Laughlin, J., concurred.
Judgment affirmed, with costs.