5 Dem. Sur. 24 | N.Y. Sur. Ct. | 1887
Taking all of the provisions of the will into consideration, it would seem that the testator intended to give more than a mere life estate to his wife. Although he uses the words “ during the term of her natural life, ” yet he proceeds to clothe her with a power of disposal of the estate, inconsistent with a mere life estate. The words imposing conditions upon the gift of the estate for life, “ subject, nevertheless, to the conditions of this will,” seem to lack any force, because the will nowhere imposes any “ conditions, ” within the ordinary meaning of the word, upon the wife. Probably the draftsman used it in the sense of “ terms,” and, judging from the context, it would appear that the intention was to say: “ and, in addition thereto, to have the authority and exercise the powers prescribed by the terms of this will.” There is nothing in the will signifying an intention to make the life estate 61 subject” to anything whatever, aside from the sentence quoted. He authorizes her to sell real and personal estate, and to purchase other real or personal estate; to use his estate in aid of needy relatives; to contribute, from the same source, to charitable and benevolent purposes; and to give
The question is not without very serious difficulties; the peculiar structure of the will rendering it no easy matter, from the language employed, and the somewhat conflicting provisions of the instrument, to reach an entirely satisfactory conclusion; but the fact that the widow seems to be clothed with an absolute and unconditional power of disposition of the whole of the estate destroys the effect of the words, “ during the term of her natural life, ” and renders nugatory the
I am not unaware of the cogency of the express language, creating a limitation of the estate to the wife for life, but, as already stated, deem it to be overborne by the general scheme of the will. In the case of Hoy v. Mester (6 Sim., 568), where the testator devised the whole of his property to his wife for life; at
There is no express trust created by the will, and
Of course, this court can, on the probate, construe a will as to the personal estate only, but as both real and personal estate stand upon the same footing, as to the application of the principle discussed, it became necessary to examine the whole will, with a view to its proper interpretation as to the personalty.