165 Misc. 122 | N.Y. Sur. Ct. | 1937
The problem propounded concerns the interpretation of the third item of the will of this decedent which was admitted to probate on February 25, 1913. It reads: “ I give, devise and
The instrument contains no subsequent dispositive direction except on the contingency that the wife predeceased the testator, which did not occur.
The opposing contentions of the widow and daughter are, on the one hand, that an absolute gift of the remainder was given to the widow subject only to diminution in the event of her remarriage, and, on the other, that the maximum which the widow was to receive was a life estate.
A preliminary issue, raised by the daughter, is that her mother is estopped to assert her claim by reason of her failure to do so earlier. This is wholly untenable whether viewed from the standpoint of an ordinary estoppel in pais or its related doctrine of waiver. No express waiver by her has been demonstrated and no implied waiver may be deduced from the facts, since this is a purely equitable doctrine which will be applied only on a demonstration of deliberate, informed abandonment of known rights (Alsens A. P. C. Works v. Degnon Contracting Co., 222 N. Y. 34, 37; Draper v. Oswego County Fire Relief Assn., 190 id. 12, 16; Ansorge v. Belfer, 248 id. 145, 150; Matter of Miller, 162 Misc. 563, 571; affd., 252 App. Div. 872), of which there is here no intimation.
Nor has there been demonstrated any alteration of position on the part of the daughter in reliance upon the temporary failure of the widow to assert any rights which she may possess to ownership of the entire property subject to the divesting condition subsequent of her remarriage. In the absence of such showing no estoppel in pais can be invoked against her. (Laurence v. Brown, 5 N. Y. 394, 401) Jewett v. Miller, 10 id. 402, 409; Manufacturers’ & Traders’ Bank v. Hazard, 30 id. 226, 230; Continental National Bank v. National Bank of the Commonwealth, 50 id. 575, 581; Blair v. Wait, 69 id. 113, 116; Rothschild v. Title Guarantee & Trust Co., 204 id. 458, 464; Olin v. Kingsbury, 181 App. Div. 348, 355; Matter of Leverich, 135 Misc. 774, 778; affd., on opinion of this court, 234 App. Div. 625.)
Assuming the condition to continue unbroken until the death of the widow, the will contains no gift of the residue of the estate, either expressly or by implication, to any other person, wherefore, if the contention of the daughter is correct that the will gives the widow only a fife estate, it must follow that the remainder following such life estate will devolve as intestate property.
The settled principle of construction is, however, to the contrary, since it is well established that in the absence of an unequivocal expression of contrary intent, which is not here present, a “ general gift of the income, arising from personal property, making no mention of the principal, is equivalent to a general gift of the property itself.” (Hatch v. Bassett, 52 N. Y. 359, 362.) The same applies to real estate, so that “ a devise of the interest or of the rents and profits is a devise of the thing itself out of which that interest or those rents and profits may issue.” (Paterson v. Ellis, 11 Wend. 259, 298; Locke v. Farmers’ Loan & Trust Co., 140 N. Y. 135, 145.) This rule has been reiterated on innumerable occasions. A few examples are Jennings v. Conboy (73 N. Y. 230, 236); Matter of Ingersoll (95 App. Div. 211, 212); Matter of Goldmark (186 id. 447, 451); Matter of Allen (111 Misc. 93, 125; affd., 202 App. Div. 810; affd., as to this point, 236 N. Y. 503); Matter of Harris (138 Misc. 287, 289); Matter of Billman (142 id. 877, 878) and Matter of Smith (150 id. 367, 368).
It must, accordingly, follow in the present case that the widow received an absolute estate in the entire residue subject to divestment as to two-thirds thereof in the event of her remarriage, but that until the happening of such event her ownership thereof is absolute.
Enter decree on notice in conformity herewith.