6 Lans. 50 | N.Y. Sup. Ct. | 1872
The language of the will in this case is plain and well chosen for the purpose indicated.. The testator gave his wife an estate during her life, and to-his children, each, a vested remainder in fee in one eleventh part of his estate, which should vest in possession upon the termination of the life estate of his widow. As all the children survived the testator, the provision that the children of a deceased child should take the share their parent would have taken never took effect.
It is hardly disputed that such is the legal effect of the language employed, hut the appellants contend that the whole will manifests an intention on the part of the testator that his estate should not vest in his children until the death of his widow, and that the children then living should take as survivors, the issue of a deceased child taking a parent’s share.
The will contains no language adapted to make such a disposition. The devise is “to all my children and their heirs and assigns.” He then repeats the gift to his children,, naming them, and specifies the share each is to take, namely, one equal share. In the last sentence, the words “heirs and assigns ” are omitted. Taking the gift in either form, however, it is the same in legal effect, for the term heirs or other words of inheritance are not requisite to create an estate in fee. The devise, then, is to the testator’s wife during her life, and after her death to his children, each one share. No-more apt words could have been chosen to create a vested remainder in fee in the children. The words “ from and after the death of my wife” do not make a contingency, but merely point to the time when the estate is actually to vest in possession. The provision for the children of a deceased child was probably inserted because tlie testator thought it was necessary to prevent a lapse. At common law it would have been necessary for that purpose, but the rule has been changed by statute. (2 B. S., 66, § 62.) But whatever the object was, it furnishes no evidence of an intention that the devise of the remainder should not vest at the death of the
The will of the testator does not admit of such a construction, and we could not give it that effect without making a new will for him.
We are unable to perceive that the ninth clause in the will makes any change in the legal import and effect of the seventh clause. There could not, in the nature of things, be any actual enjoyment by the devisees in remainder of their separate shares during the life of the widow. But this is evidently the kind-of enjoyment which the testator meant by the term “ division of my estate.” When, therefore, the testa
The judgment is, therefore, affirmed with costs.