| N.Y. App. Div. | Jul 1, 1902
The judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide event.
The action was for the partition of real estate. The appellants •claim that they have interests in the property under the will of plaintiff’s testator, Frederick Wieehmann.
The respondents, the Kreutzers, claim they are the sole owners of the property under the will of Frederick Wieehmann and his widow, Mary Wieehmann.
Frederick Wieehmann died September 6, 1890, leaving a will and leaving a widow Mary. The widow was made executrix, the will was admitted to probate, the estate was administered and a judiciahsettlement had July 20, 1892, the decree showing that after paying debts, funeral expenses and expenses of administration and ■$2,000 in specific legacies, there remained $2,374.25. This fund, •or some part of it, ivas in October 1893, put into the real estate in
The question involved here is whether under the will of Frederick Wiechmann his widow Mary took the residuary of his estate absolutely or merely a life use thereof, with remainder over to the persons referred to in the will, some of whom were the appellants.
If she took absolutely, then appellants have no interest in the real property in question. If she took only a lÁfe use then appellants apparently have some interest therein, enabling plaintiff to maintain this action.
The will, after providing for the payment of debts, funeral expenses, and expenses of administration,
First. Gave Lina Kurtz, or her children $1,000.
Second. Gave the children of Carl Wiechmann $1,000. And now we quote.
'■‘■Third. All the residue and remainder of my estate, both real and personal, I give, devise and bequeath to my beloved wife, Mary Wiechmann, to be liers in fee simple absolutely and forever, with ■full power to sell and convey, buy and' discharge any and all matters as she sees fit.
‘■‘■Fourth. After the death of my said wife, the remainder of my estate is to be divided in halves, one half is to be divided between the legal heirs on my side, and the other half between the legal heirs of my wife’s, share and share alike,” and then- the wife was named as executrix, and all former wills were revoked. The will was made a few months only before death.
The question arises under the 3d and 4th clauses of the will.
The most important principle in the construction of wills is that. the intention of the testator, as expressed in the will, should control, if not inconsistent with rules of law. The will is emphatically the will of the testator, the declaration by him of what shall become of his property after his-death. The property is his, he has a fight to' dispose of it as he desires, and it is, therefore, very proper that his intention, so far as it can be ascertained from the language of the will itself, should prevail. The 3d and 4th clauses of this will, read
It is very evident that the testator by the two clauses together intended to give his widow the full use of the property during her life, with the power specified in the 3d clause, and to give such part thereof as should remain after her death to the persons referred to in the 4th clause. The person who drew the will apparently did not appreciate fully the meaning of the terms used in the first part of the 3d clause, but, talcing the two clauses together, we have no difficulty in understanding what was intended to be accomplished by the will.
There is no legal rule which interferes with our giving effect to this evide.nt intention of the testator. The only rule suggested is the one relating to the cutting down .of an absolute estate given by the language of one part of a will by the language of a subsequent part thereof. This rule, correctly stated, however, is as follows: When an absolute estate is given in one part of a will in clear and decisive terms, such estate cannot be cut down or limited to a life use by a subsequent part of the will unless the part providing for a life estate is expressed in as clear and decisive language as the part
In this case the 4th clause expresses-the intention to limit the estate of the widow to a life use and to give the remainder to other persons just as clearly as language can be made to do it. The rule referred to, therefore, in no way interferes with the construction given by us to the will. In this construction we are supported by a case in the United States Supreme Court very like the one we are considering. (Smith v. Bell, 6 Pet. 68" court="SCOTUS" date_filed="1832-02-18" href="https://app.midpage.ai/document/smith-t-v-bell-85765?utm_source=webapp" opinion_id="85765">6 Pet. 68), wherein the opinion was written by Chief Justice Marshall, and we are aware of no decision' to the contrary.
We conclude, therefore, that the widow took only a life use of the property under the 3d and 4th clauses of the will, and that plaintiff took an interest therein and in the property in question, which enabled her to maintain this action.
Under the provisions of the Code and the decisions of the court the questions arising in this case could be determined in the action of partition.
• The plaintiff, under the allegations in the complaint, was a tenant in common with the respondents. They were necessary parties to the action, and, therefore, the issues made by the pleadings could be litigated in the action under section 1543 of the Code of Civil Procedure. . (Satterlee v. Kobbe, 66 App. Div. 806, and cases therein referred to.)
The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide event.
Adams, P. J., and McLennan, J., concurred; Spring and ITiscook, JJ., concurred in result only.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.