29 N.Y.S. 27 | New York Court of Common Pleas | 1894
Henry C. Giles died April 27, 1887, leaving a last will and testament, and a codicil thereto, both of which were duly admitted to probate in this county. George B. Patterson, one of the executors named in the will, qualified as such, and has taken charge of the estate, which consisted of a small amount of personal property, and the premises known as “Nos. 163, 165, and 175 Canal Street,” in this city. Emma Giles, the defendant herein, and the widow of Henry C. Giles, remarried February 11, 1891. The ex
“In addition to the provisions which in and by my said will I have made lor the benefit of my beloved wife, Emma Giles, I do give and bequeath unto her all my household goods and furniture absolutely, as and for her •own property, and to be at her own disposal: And also I do give, devise, and bequeath unto my said wife in fee simple, all the one equal third of my real estates,” etc.; “and these gifts are to take effect whether or not she shall remarry after my death, if she shall survive me.”
He then revokes his devise to certain nieces, and continues:
“Hereby declaring that it is my will that my brother William P. Giles and my nephew John G. Kinkele shall take, in equal shares, the portion of my estate which, in and by my said will, is given, devised, and bequeathed to them and to my said two nieces, * * * saving and excepting therefrom the one equal third part of my real estate and the household goods and furniture which I have herein given, devised, and bequeathed to my said wife, Emma Giles.”
Appellants contend that, since the remarriage of the respondent, they are each entitled to one-third of the net annual income of the estate, after deducting $2,000 awarded the widow annually by the will, while respondent contends that she is entitled to one-third •of the entire net income of the estate, and to $2,000 more. In other words, if the entire net income of the estate were $6,000, she would be entitled to $4,000, while the devisees of two-thirds, of the estate would be entitled to only $1,000 each. Respondent bases this contention on the language of that part of the codicil before quoted, and insists that the whole of the first part of it should be read as ■one sentence, and that inasmuch as the first clause gives the household goods and furniture to the respondent “absolutely, as and for her own property, to be at her own disposal,” so the second clause, connected, as she claims, by the words “and also,” devised one-third of the real estate to her in like manner, i. e. as and for her own property, to be at her disposal. But this seems to us to be a
The respondent also insists that the use of the words “In addition to” frees the devise of the one equal third of the real estate to her from the charge on the remainder of the real estate. But, as we have-before shown, these words only mean that the widow was to have-something in addition to the $2,000 left her by the will in case-of her remarriage. This additional something was—First, personal property, which the testator was careful to provide should be free from every charge by giving it to her absolutely in every event;, and, second, one-third of the realty which he devised without any such provision.
Nor do we think that the words “in fee simple” at all aid respondent’s contention. “Fee simple” is defined by Bouvier to be “a pure estate of inheritance, not restrained by any heirs, nor subject to any condition or collateral determination except the law of' escheat.” 2 Bouv. Law Diet. p. 215. The word “simple” adds no-meaning to the word “fee,” standing by itself; but it excludes all qualification or restriction as to the persons who may inherit it as heirs, thus distinguishing it from fee tail, as well as from an estate-which, though inheritable, is subject to conditions or collateral determination. 1 Washb. Beal Prop. 51. The phrase does not mean-
No one will dispute but that the $2,000 annuity was, by the will, .expressly charged on the whole estate left by the testator. This «charge, as we have before shown, was expressly removed from the personal estate. It is a general rule that a codicil will not operate as a revocation beyond the clear import of its language, and that •an expressed intention to make an alteration in a will in one particular negatives by implication an intention to alter it in any other respect. Wetmore v. Parker, 52 N. Y. 450; McLoskey v. Reid, 4 Bradf. 334. Applying this rule to the case under consideration, we cannot escape the conclusion that the respondent’s one equal third of the real estate given her by the codicil remains subject vo the charge imposed by the will. As before shown, this charge is not expressly removed by anything contained in the codicil, while the -personal property is expressly freed from it. By the will the testator gave his entire estate to the appellants and two nieces in equal ■shares, charged, however, with the payment of the entire income to respondent until her death or remarriage, and, on her remarriage, ■subject to the payment of the annuity of $2,000. By the codicil the testator revokes every gift and devise to the two nieces named in the will, and, after giving his household goods and furniture to the respondent, he gives her, “in fee simple, all the one equal third part of my real estate,” making no mention of the charge, and then gives to the appellants, “in equal shares, the portion of my estates which In and by my said will is given devised and bequeathed to them and my said two nieces * * . * saving .and excepting therefrom the .one equal third part of my real estate and the household goods and furniture which I have herein given” to respondent. No other alterations are made by the codicil, and in it the testator expressly confirms his will except as altered. By the codicil, were it not for the •exception of one-third in the widow’s favor, the whole of the real •estate xvould have gone to the appellants. In that case there could have been no question but that the whole would have been charged with the annuity to her. But if the codicil gives one-third of the real estate so charged to her, how can it be argued that the mere gift of property charged with an annuity discharges it? Again, the words “equal third part,” used throughout the codicil to designate that portion-of the real estate given to the respondent, we think extremely ■significant. What is respondent’s one- “equal third part” equal to, if not to the third part of each of the appellants? Yet, if her contention is sound, how unequal these equal thirds are, hers being free and clear, and each of the other two equal thirds not only, charged ■with one-third of the annuity, but surcharged with one-half of one-third more. We therefore conclude that the charge still remains upon the entire real estate, including respondent’s portion. A much stronger case than the one now under consideration was decided ad
Net rents, Feb. 1st, 1891, to Jan. 1st, 1893......................... $7,209 11
Less rents, Feb. 1st to 11th, 1891......................$ 115 88
Annuity Feb. 11th, 1891, to Jan. 1st, 1893 ............... 3,777 77 3 893 65
$3,375 40
Share of plaintiff limítele...................................... $1,125 15
Share of Giles.................................................. 11:5 15
Share of defendant............................................. 1,125 10
$3,375 40
Defendant’s share of rents, Feb. 1st to 11th, 1891.................. $ 115 88
Annuity to Jan. 1st, 1893 ....................................... 3,777 77
Share of balance............................................... 1,125 16
Total ..................................................... $5 018 81
Payments to defendant......................................... 4,312 39
Leaving due respondent, Jan. 1st, 1893............................ $ 640 42
—Which should be paid her, and the remainder of the rents-—$1,125.15 —to each of the appellants; they to have the costs of this appeal and the costs of the action up to final judgment, to be paid out of the income of the estate. All concur.