147 N.Y.S. 695 | N.Y. App. Div. | 1914
Leonard Marsh died in 1870, leaving a will dated in 1868. which with a codicil made shortly thereafter was admitted to probate in Vermont, where his residence had been, and letters were issued to Anne L. Marsh, his widow. His heirs at law were three sons and one daughter, who in 1884 quitclaimed land to the widow, who, in May of 1884, conveyed by full covenant deed to- Sidney V. Lowell, and from him by mesne conveyances begun in 1885 the land in question came to the appellant Consumers’ Park Brewing Company in April, 1899 and 1900. It is subject to a mortgage held by the defendant Farmers’ Loan and Trust Company as trustee. One of the sons, George F. Marsh, died before the widow, leaving the respondents as his heirs at law, who assert title to an undivided one-quarter of the land. They base them claim upon the fact that their father, one- of the four remaindermen, died pending the expiration of the life-estate in the widow, and that they took by substitution under the will.
The will, so far as here important, is as follows: “ Second. All the estate real and personal * * * whatsoever * * * which shall belong to* me at the time of my decease and the rents, issues, income, and profits thereof, I give, devise and bequeath to my wife Ann during her natural life in lieu of all her dower share thirds or portion of my estate, and on her death I give, devise and bequeath the same to my children equally share and share alike, the descendants-of any deceased child to take the share which his or her deceased parent would take if living. And I hereby authorize and empower my said
After providing for a special executor to partition or sell land in the State of New Jersey, it is provided: “ Fifth. And as to all my said real estate and property situated and being in the State of New York, I hereby appoint Charles L. Benedict of the City of Brooklyn, * * * special executor of this my will with full power by and with the consent of my said wife to be manifested by her signing the deed or deeds with him to partition or sell and convey the said real estate or any portion thereof, and to receive the proceeds thereof and pay the same to my said wife my general executrix as aforesaid for the purposes of this my will.”
The codicil is as follows: “'It is my wish that each of my sons shall receive a collegiate education and also such professional or business education as they shall respectively desire, and also that my daughters shall be thoroughly educated and it is my will and I hereby direct that if in the judgment and discretion of my wife, in order so to complete the education of my children and to provide for the other necessary expenses of the family, and for her own support the rents, income and profits of my estate shall be insufficient, then my said wife shall from time to time at her discretion use and expend for the purposes aforesaid so much of the principal of my estate as she may find necessary for such purposes.”
If from the whole will the intent appears that the words
At the testator’s death his children were unmarried and under age, and the land was in three States. The part in New York was in the outskirts of Crow Hill, Brooklyn, unimproved, with a single rough street through it, given over to squatters, worth about $4,000 and burdened apparently with assessments to the amount of some $23,000, the illegality of which did not appear on their face. (Marsh v. City of Brooklyn, 59 N. Y. 280.) Under such conditions it is apparent that the property was not marketable at any substantial price and would attract only such purchasers as would hazard litigation. The widow lived for thirty-four years, and meantime the land or the avails of it, according to respondents’ contention, were not alienable because it could' not be known whether the remaindermen would keep the title. Several provisions in the will and considerations in construction declare intention to refer the possible death of a child to the lifetime of the testator. (1) Power is given to the special executor in New York to partition or sell the land in that Stats. Although at the date of the will, but not when it took effect, the testator owned the land in common with his brother, the power to partition is not related to that, as the power to partition such land is given specifically to the executrix. Moreover, the power to the special executor in New York relates to “ my said real estate * * "x" to partition or sell and convey the said real estate or any portion thereof.” Why partition land to those who would take a defeasible title ? (2) The law favors the absolute vesting of the estate in the testator’s children as soon as possible after his death. (Riker v. Gwynne, 201 N. Y. 143, 149.) (3) The testator is deemed to contemplate at the time he made the will the conditions at the time it should take effect. (Matter of Hoffman, 201 N. Y. 241, 255.) Here the children are
In 1840 the highest court of this State decided Moore v. Lyons (25 Wend. 119), and laid down a rule of construction that was never doubted but always followed until long after the conveyances involved in the action at bar had been made. The President of the Senate, Luther Bradish, distinguished in civil and judicial life, wrote an opinion at length reviewing decisions of this country and England, and he was followed by Chancellor Walworth and Senator Verplanck in discriminating discussion, while thirteen senators concurred, with three dissenting. The will was: “I give and devise unto the said negro-woman Mary, my dwelling house and lot. * * "" To have and to hold the same unto her, the said Mary, for and during her natural life; and from and after her death, I give and devise the said dwelling house * * * to Susan, Jane and Betsey, three daughters of said Mary, or to the survivors or survivor of them, their or her heirs and assigns forever.” In the Supreme Court, Nelson, Ch. J., in a brief opinion had said that the words of survivorship referred to the death of the life tenant. But the Court of Errors decided that they referred to death in the lifetime of the testator. The president of the Senate premised his opinion with the statement that he considered “ the rule of law to be adopted in this case as one of great general importance, and in this court new,” and said: “The solution of this question involves the decision of the main point above stated; viz. ‘to what period does a general clause of survivorship refer ? ’ ” The opinion, after some reference to decisions in England, says: “ There have been, however, a very few cases where either under a mistake as to the authorities upon this subject, or from peculiar views of individual judges, the general rule has been somewhat departed from, but not to an extent sufficient, in opposition to the great weight of authority to the contrary, to change the rule. ” Then the opinion discusses certain cases relating to real estate tending to state a rule other than that adopted in the case at bar, and shows that in Shergold v. Boone (13 Ves. 375), Sir William Grant corrected the hasty expression used by him in Brown v. Bigg (7 Ves. 280). Then it is said: “ The only direct authority, therefore,
After thirty-three years the Court of Appeals decided Livingston v. Greene (52 N. Y. 119). The will gave a life estate to
I wish to emphasize the' distinct approval of the rule laid down in the earlier cases. While it was also said that “presumed intent” was affirmed by other provision in the will, referring to Livingston v. Greene it was also stated, “This case is directly in point, and not so strong as the case at bar.” In Matter of Mahan (98 N. Y. 372), decided in 1885, E. devised two lots to her executor with discretionary power to sell, in trust, to collect the income or proceeds of sale and to pay therefrom to her mother annually a specific sum during life, and sums necessary for the support and education of her son T., during his minority, and to divide the balance among her three other children. Upon the death of the mother and the arrival at age of J., she gave one lot or the avails thereof to J., “his heirs, executors, administrators and assigns,” and the residue of her property to her three other children, “ the survivor or survivors of them.” J. became of age and then the mother of the testatrix died and but one of the three children named in the residuary clause was hving. It was decided that the words of survivorship referred to the death of the testatrix, and that the limitation of the residuary estate took effect as a valid remainder at that time, and that, therefore, the representatives of the two deceased children were entitled to their respective shares of such estate. Among other authorities cited was Moore v. Lyons. In 1892, in Nelson v. Russell (135 N. Y. 137) the will was substantially tiie same
I have now traced the decisions in the Court of Appeals to the year 1901, and will briefly refer to some decisions of the Supreme Court, and in some instances affirmed in the Court of Appeals, where the rule was applied.
In Hopkins v. Hopkins (1 Hun, 352) there was a gift to two daughters for their lives if they remained unmarried, or for the life of the one that should remain unmarried, and in the event of their death or marriage “ I give * * * the * * * remainder of my estate to my children,” naming them, “or to the survivor or survivors of them. In case any of my children die, having issue, then I will and direct that the child or children of such son or daughter of mine, shall receive the same as the parent of such grandchild would have received if living — that is, the portion that would have belonged to the parent, if living.” It was decided that the provision for the issue of such as might die related to the share of such child as might not be living at the time of the death of the testatrix. In Weed v. Aldrich (2 Hun, 531) there was a devise to the wife “ and at and after her decease, it is my will that all my estate, either real or personal, be equally divided between my two children, and to the survivor or survivors, share- and share
I will now consider decisions tending to impair the rule adopted by the primary authorities.
It would confuse the present question to discuss decisions not involving a, life estate, unless some disapproval of the primary cases is mentioned. For instance, in Buel v. Southwick (70
But lest it should be thought that the court was turning from the primary authorities, I interpolate here Quackenbos v. Kingsland (102 N. Y. 128), where K., after specific devises and bequests, gave the residue of his estate to his son Daniel “ and to his heirs; but in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children, share and share alike.” It was decided that the reference was to the death of Daniel before the testator. The opinion states: “ This conclusion is required by the decisions of the courts in many similar cases. (Embury v. Sheldon, 68 N. Y. 227; Livingston v. Greene, 52 id. 118.)” Vanderzee v. Slingerland (103 N. Y. 47) is similar to Buel v. Southwick and Nellis v. Nellis. There was no life estate, but as it is cited in cases to he noted, it should be understood, and for emphasis I have italicized some lines in the opinion. The will of V. gave land to his son C., “ subject to the proviso hereinafter contained.” After various legacies payable by C., there was a proviso to the effect that if C. died without issue, then the estate devised to him should go to four grandchildren of the testator, and “ In case my son Cornelius should die before the provisions of this will become an act, the devisees last named shall perform and fulfill all the conditions required of my son Cornelius to the legatees named.” C., surviving the testator, died without issue. It was decided that the words “died without issue” referred to a death at any time, and that Cornelius took a fee and that the gift over operated in the event only of his death without issue. Judge Andrews said: “It is said by Mr. Jarman (2 Jarm. 783) to be the general rule that where the con
In Matter of Denton (137 N. Y. 428), after a fife estate, the residuary estate was given to four children, with 'a proviso that “in case of the death of either of them leaving issue before either of the different parts thereof * * * can be divided, then such issue to take the share or part the parent would have been entitled to if living; if without issue, then the survivors to take.” E., a son, died before the life tenant, leaving a wife; his issue had predeceased him. Judge Maynard wrote: “It is evident from the context that it was not his own death which the testator had in mind when he made the survivorship of the residuary legatee a condition, which must be shown to exist before he can be admitted to share in the distribution of the fund.” The conclusion is so very evident that it was not necessary to say that the rule referring
Lest it should be inferred that the statement so unnecessarily made in Matter of Denton represented a settled rule of construction, I introduce the later expression in Benson v. Corbin (145 N. Y. 351), where the testator gave to the wife the use of two dwelling houses during her life, and provided that “ in case of the sale of either or both with her consent the income of the proceeds shall be paid to her; ” he then devised said dwelling houses to two children subject to the life occupancy of their mother, and also devised to them all his other real estate subject to her dower right. Later it was provided that in case of the death of both of the children without issue, the property devised to them “ and their issue ” should not pass to the branches of his own or his wife’s family, but is given to a beneficiary named. It was decided that the death without issue meant a death in the lifetime of the testator, and as the two children named survived they took an absolute fee subject to tire life estate. Judge Finch, after referring to Judge Andrews’ opinion in Vanderzee v. Slingerland, continues: “ And the doctrine has been repeated as recently as Washbon v. Cope (144 N. Y. 297). While such is the general rule, it is said to maintain its hold somewhat weakly and with a doubtful grasp, and to yield easily to any fact or circumstance indicating a different intention. Although that is undoubtedly true, it takes on some modification by force of another rule, equally well settled, that where there is primarily a clear and certain devise of a fee, about which the testamentary intention is obvious and without ambiguity, the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning.” In Matter of Baer (147 N. Y. 348) the will devised property in trust for use of a daughter E., and at her death to her issue, and in case of her death without issue the trustees were directed to apply the rents and profits to the support of her sister M. during her life, and at her death to convey the remainder “ to the children and lawful heirs of my brother * * * deceased, to share and share alike per stirpes.” E. died intestate and without
I consider finally Lyons v. Ostrander (167 N. Y. 135), not for the purpose of disputing its authority, but to refer to the state of the law at the time, the injustice of applying it to the will of the date now in question, as the testator or his advisers must have intended to use the words according to the interpretation then long given them.
W. devised land to executors in trust to pay net rents to adopted son Jacob Weeks Cornwell during his life, and “upon his death I give * "x" * to Virginia Cornwell,” wife of the life beneficiary, “ Ida Van Cott, Clarissa Lyon and Millard Fillmore Cornwell, children of said Jacob Weeks Cornwell, share and share alike, the issue of such as may have died to take the share to which his, her or their parents would, if living, have been entitled.” Without resorting for aid in interpretation to other parts of the will, it was decided that the substitutional clause took effect in case of the death of any named devisee before the termination of the trust. Such a decision based on similar words had not, so far as I discover, been discussed in extenso by that court in any earlier case. But the opinion exhibits the usual clarity of expression of the learned judge who wrote and is unmistakable in its application to the particular provision in question. The opinion states: “The context itself clearly indicates that the preceding words, ‘upon his death,’ refer, not to the death of the testator, but to the death of the life beneficiary.” But in such discussion not one of the decisions stating or approving a different rule, which I have presented, was mentioned. The only cases in the Court of Appeals cited are Fowler v. Ingersoll (127 N. Y. 472); Mullarky v. Sullivan (136 id. 227); Matter of Denton (137 id. 428); Matter of Baer (147 id. 348).
I have already shown that in Fowler v. Ingersoll no American case is cited asserting the rule or a single case in this
Giving these foreign cases such authority as the dignity of the courts deciding them demands, the question arises should they be allowed to override a contrary rule, at the time of the events in question established in a long line of decisions in the highest court of this State ? But it may be answered that some of the primary authorities do not involve the substitutional clause present in Lyons v. Ostrander. Most of them do. A few do not, like Stokes v. Weston (142 N. Y. 433), where the substitution was to grandchildren in case of the death of a son without issue. Benson v. Corbin (145 N. Y. 351) was similar. So in Matter of Mahan (98 N. Y. 372) the remainder depended upon survivorship. But lest it should be suggested that such cases are not authorities on the present question, it should be noted that three of the four cases in the Court of Appeals cited in Lyons v. Ostrander did not contain the clause in question. In the very leading case where this new rule was first recited in the Court of Appeals, Fowler v. Ingersoll, the remainder went to survivors if the first taker died without children. So it was in Mullarky v. Sullivan and Matter of Baer. So that of the four American cases upon which Lyons v. Ostrander rests, Matter of Denton alone has a similar substitutionary clause. In Lyons v. Ostrander (supra) it is said: “ This is not the case of a devise in trust to A for life with remainder to B, or in case of his death without issue then to some one else. ” If it was the intention to suggest that the rule would be different in such case, two authorities relied upon for the new rule are eliminated. The opinion in Lyons v. Ostrander quotes from Underhill on Wills (§ 346) that in a case where there is a precedent life estate “ three periods — the lifetime of the testator, the life of the prior devisee, and the period thereafter — are open to selection.” But the selection of the period depends upon the testator’s intention, and I repeat that at the time the present will was made, and when the deeds under it passed, the rule undoubtedly was that in the absence of other
The judgment should be reversed and the complaint dismissed, with costs.
Jenks, P. J., Rich, Stapleton and Putnam, JJ., concurred, upon the ground, however, that the will as a whole shows the intention to vest in the children at the death of the testator an absolute fee, and that the substitutional clause refers to death at some time before that of the testator.
Interlocutory judgment reversed and complaint dismissed, with costs.
4 Madd. Ch. 11.— [Rep.
Doe v. Gallini (5 Barn. & Ald. 649) — [REP.