79 N.Y.S. 556 | N.Y. App. Div. | 1903
Lead Opinion
The parties to this record, by a submission of their controversy under section 1279 of the Code of Civil Procedure, seek a judicial construction of the seventh clause of the will of Clifford A. Hand, who died in August, 1901. The will was admitted to probate by the surrogate of New York county on the 14th of September, 1901. The testator was a lawyer, who had practiced his profession for over 45 years in the city of New York. He was married, but had no children. He had two brothers,—Samuel Hand, who died May 22, 1886, and the defendant Richard L. Hand. Samuel Hand left a widow, the defendant Lydia L. Hand, and two children, the defendants Learned Hand and Lydia Hand Hun. The present controversy relates to the interests acquired under the will by Richard L. Hand on the one side and the children of Samuel Hand on the other. Samuel Hand left a last will and testament, which was duly admitted to probate, but, as we view this case, it is unnecessary to refer particularly to its provisions. The questions arising on the submission in no way affect the interest of the widow of Clifford A. Hand, and therefore she is not a party to it. By the first clause of his will Clifford A. Hand devised in fee to his two brothers, Samuel and Richard L., certain real estate in the county of Essex, in the state of New York, and certain real estate in the county of Addison, in Vermont, which latter property he had acquired from his father, or through conveyances from his brothers. With respect to all that realty he provided in the second clause of the will as follows, viz.:
“In ease of the decease of either of my two brothers before me, I devise ■ the share of my said real estate so intended for him to his children who survive me.”
The third, fourth, fifth, and sixth clauses are immaterial to the questions now presented. The seventh clause of the will is as follows, viz.:
“All the residue of my estate and property, of whatsoever nature and wheresoever situate, of or to which I may die seised, possessed, or entitled, I give, devise, and bequeath the same to the executors of this,, my will, upon trust to receive the income thereof, and to apply the net income realized therefrom to the use of my wife, Maria L. Hand, during her natural life, and upon her decease to pay over and transfer a part or p.arts of the principal not ex*558 ceeding in aggregate ten thousand dollars to such oí the then living lineal descendants of my wife, or of my father, as by her last will and testament my wife may direct and appoint; and, subject to the life use therein of*'my wife, and the exercise by her of the said power of appointment, I give, devise, and bequeath the beneficial right and title in and to my said residuary estate to my two brothers, Samuel and Richard, who, or whose representatives or assigns, are to be entitled to possession and enjoyment thereof upon and after the'decease of my wife.”
The matters presented for decision on this submission may be best considered upon two contentions very clearly made and very ably argued on behalf of the defendant Richard L. Hand as to the proper judicial construction to be given to that part of the seventh clause of the will above quoted which disposes of remainder interests after the expiration of the trust created for the benefit of the testator’s widow. Those contentions are: First, that a joint tenancy was created of the remainder, and that, Samuel Hand having predeceased the testator, the share in the real and personal estate embraced in the remainder which would have passed to Samuel Hand had he been living goes to Richard L. Hand by survivorship; and, second, if a joint tenancy were not created in the remainder, then, Samuel Hand having died before his brother Clifford, the gift intended for Samuel lapsed, and there is intestacy as to such intended gift, and the real estate embraced in it descends to‘ the heirs of the testator, and the personalty is distributable among his next of kin according to the statute of distributions.
1. We find nothing in this will which would prevent the application to the gift of the remainder of the provisions of the Revised Statutes now constituting section 56 of the real property law (Laws 1896, c. 547), by which it is enacted that “every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.” We think it is plain that the testator meant that his brothers should take each separately and in his own right, and that the gift is not to a class. In re Kimberly’s Estate, 150 N. Y. 90, 44 N. E. 945, and McDonald v. McDonald, 71 App. Div. 116, 75 N. Y. Supp. 674, seem to dispose of this branch of the case. The testator was a lawyer of very great experience, and it is scarcely conceivable that, if he intended to create a joint tenancy, he would do otherwise than follow the requirement of the statute.
2. We are of opinion that there is not intestacy with respect to the share in the residuary estate which Samuel Hand would have taken under the seventh clause of the will had he survived his brother, Clifford. Such construction should be given 'to this seventh clause as will prevent intestacy, if that result can be obtained by a natural, reasonable, and unstrained interpretation. Schult v. Moll, 132 N. Y. 122, 30 N. E. 377; Weeks v. Cornwell, 104 N. Y. 337, 10 N. E. 431; Clark v. Cammann, 160 N. Y. 315, 54 N. E. 709. It is argued that by contrasting the provisions of the first and second clauses with those of the seventh clause it will be seen that a different dispository intention was' in the mind of the testator as to the property passing by those clauses respectively. In the second clause the testator anticipated the death of either of his brothers in his lifetime, and, in the
We are therefore of the opinion that, subject to the power of appointment given to the testator’s widow, and upon her death, Richard L. Hand is entitled to receive one-half of the residuary estate disposed of by the seventh clause, and that Lydia M. Hand Hun and Learned Hand are entitled to receive the other half in equal portions.
Judgment is directed accordingly. All concur, except McLAUGH-LIN, J., who dissents.
Dissenting Opinion
(dissenting). I concur with Mr. Justice PATTERSON in so far as he holds that the testator intended that his brothers, Samuel and Richard, should take, each separately and in his own right, and not as joint tenant, the property given in the seventh clause of his will, but I cannot concur with him that, subject to the power of appointment given to his widow, the testator intended to substitute children for a parent if the parent died before the gift to him could take effect. I do not think such construction is justified by the language used, nor do I think it gives effect to the testator’s intent. This clause of the will reads as follows:
“Seventh. AH the residue oí my estate and property, of whatsoever nature and wheresoever situate, oí or to which I may die seised, possessed, or entitled, I give, devise, and bequeath the same to the executors oí this, my will, upon trust to.receive the income thereof, and to apply the net income realized therefrom to the use of my wife, Maria L. Hand, during her natural life, and upon her decease to pay over and transfer a part or parts of the principal not exceeding in aggregate ten thousand dollars to such of the then lineal descendants of my wife, or of my father, as by her last will and testament my wife may direct and appoint; and, subject to the life use therein of my wife and the exercise by her of the said power of appointment, I give, devise, and bequeath the beneficial right and title in and to my said residuary estate to my two brothers, Samuel and Ei chard, who, or whose representatives or assigns, are to be entitled to possession and enjoyment thereof upon and after the decease of my wife.”
In this clause it will be noticed that there is an absolute gift to Samuel and Richard, subject only to the provision for the wife, with ■ a limited power of appointment. This must be so, unless it he held that the words “who or whose representatives or assigns,” or some one of them, amount to a substitution of the children or executrix of Samuel (he having died before the testator) for himself. These words, I do not think, amount to a substitution; and to hold that they do is, as it seems to me, to put into the will something which does not there appear, by giving effect and meaning to words not