22 Wend. 137 | N.Y. Sup. Ct. | 1839
By the Court,
The will was inartificially drawn in every respect. It is well settled that the devise of all the testator’s real and personal estate to Margaret, was sufficient to carry a fee in the land, if there had been nothing else in the will shewing that such was not the intention. Technically, in order to carry a fee, the usual words of limitation “ her heirs,” &c., would have been necessary. But in case of wills, where the intent to devise a fee is made apparent, either by equivalent words or other parts of the will indicating that such was the probable intent, this has been received as a substitute. That was a departure from the common law, out of favor to wills; in other words, out of favor to the intent; and it was only to reach the intent that the departure was allowed. There is nothing in the words, “ I devise all my real estate” necessarily incompatible with an intent to devise for life only. The testator might have said, í! I devise all my real estate for life,” and then the word estate would be taken as merely descriptive of the subject matter ; and not as indicating a limitation in fee; and if by subsequent words such intent appear to be plain, there is no authority against its taking effect. There is no rule of law against the words of a will being in any way explained or limited by a subsequent part of the same instrument, or even by a codicil, though I agree that the qualification should be explicit. If the words had been, “ after my said wife’s death, the said
Here, however, the devise in remainder, is of all the avails of the property that might remain at the death of the testator’s wife, to Charity, &c., till Rudolph’s full age; and more or less of it then remaining, to go over to him ; as if it was to be sold or consumed from time to time, both by Margaret and Charity, as it came successively into then-hands. The devise then stands thus: “ I devise all my real estate to Margaret, and the avails of it that remain at her death, I devise over to Charity,” &c. The difficulty is to see how such an equivocal expression may be said to be a clear qualification of the previous words. Does it not rather imply an intention that Margaret should have an estate absolutely disposable, according to the devising "words when taken in the abstract ? _ If so, it cannot be called a counteraction of the legal import of those words ; but rather a confirmation of it. It looks like the testator supposing he might give a fee, a right of absolute disposition to a devisee, providing in the same will, that if the whole or part of the <avails arising from sale, or other disposition, should happen not to be consumed by his necessities, it should go over. That would not carry the land. At the utmost, it would carry only so much of the estate as the devisee had not disposed of during his life. The law then rather construes the original devise to mean a fee simple absolute, in respect that the devisee takes the power of unqualified disposition for his own benefit. In such case, his creditors may take
The consequence is, that the sale by Margaret was valid, for the whole fee ; and there must be a new trial, the costs to abide the event.