Jenkins v. Van Schaack, 3 Paige Ch. 242

Jenkins v. Van Schaack

3 Paige Ch. 242 | New York Court of Chancery | 1831

The Chancellor.

It is undoubtedly a leading principle in the construction of wills, that the intention of the testator must govern, provided such intention can be ascertained from the whole will taken together, and the same is not contrary to law. It cannot be permitted, however, to substitute vague suspicion in the place of fair and legitimate evidence of intent. Where plain and explicit language is used by the testator to express his meaning, the court cannot presume he meant something else; unless upon the examination of the whole will it is evident he did not mean what the language of the particular clause naturally imports. The court cannot reject words in a will which have an obvious meaning, upon the mere suspicion that the testator did not understand the import of the language which he used to express his intention. That would be to make a will for him, instead of declaring what was the legal meaning of the will he had made for himself. Full effect should be given to each clause, and to every expression in the will, if they can all stand together consistently with the general intention of the testator.

In this case the premises in question.were devised to Jenkin Jenkins, in fee, subject to the contingency of his intermarriage, after the making of the will, and dying after such marriage, in the life time of his sister, without leaving lawful issue. What is there, then, in this will to authorize the court to say the testator did not intend his son should have the right to sell the estate, or to dispose of it at his death as he pleased, if he never married; in the same manner as he was authorized to do if he married and had children who survived him 1 It must be borne in mind that it was not the intention of the testator to give the estate to the issue of the son, but to give it to the son, absolutely, if he had issue who survived him. The principal object of this limitation over, then, must have been to prevent the wife from obtaining dower; or to prevent his son from giving the property to his wife or her relatives, if he should many and have no issue who might be claimants on his bounty. The limitation over of the estate devised to the daughter is somewhat similar. If she should have issue who survived her, the estate was given to her absolutely, so that she might sell it in her life time. And if not sold by her, and *245„ the husband survived, he would be entitled to an estate for life, after her decease, as tenant by the curtesy. But if she died without issue, and her brother and husband both survived her, the estate of the husband would have terminated at her death, although there had been children of the marriage who died before her.

It is very probable thát, for some reason which does not appear, the testator did not think proper to give any part of his property to this complainant, except the two' small annuities mentioned in the will. But I see no evidence upon the will itself that the testator intended to prohibit John from taking the property by descent from his brother, in the event which has happened; or to prevent that brother from giving him the whole of the property, at his decease, if he thought proper to dispose of it in that manner. Whatever may have been the intention of the testator, he has made no valid limitation over to the sister, in the case which has occurred ; and one half of the estate devised to Jenkin Jenkins is cast by descent upon the complainant.

As he takes this moiety of the estate as the heir of his brother and not as heir to the testator, the annuity charged upon the estate, by the will, is not inconsistent with the right he now claims to that moiety. The half of the annuity, which is chargeable upon his share of the lot, is merged by the descent cast upon him of that share; but the other half of the lot, which descended to the sister, still continues hable for the payment of a moiety of the annuity.

The objection cannot be sustained that the complainant had a perfect remedy at; law. This courtj by the revised statutes, has a concurrent jurisdiction with the courts of law in suits for the partition of legal estates. (2 R. S. 329, § 79.) And there is no allegation in this bill .that the possession is holden adversely to "the claim of the complainant. If there had been an actual ouster of the complainant by his co-tenant, or if the land was held adversely, it might be necessary to regain the actual seisin, by ejectment, before a suit for partition of the premises could be sustained either at law, or in equity. (2 R. S. 317, § 1. Revisors’ notes to § 1 & 19. Clapp v. Bromagham, 9 Cowen's Rep. 530.) It is not necessary, however, to aver in *246the bill that the complainant is in possession of the premises, as that will be presumed from the allegation that the parties are seised in common. If the complainant has been ousted of his possession, or the premises are held adversely, the defendant should set up that defence by plea or answer.

The demurrer must be overruled, with costs.