13 Barb. 119 | N.Y. Sup. Ct. | 1852
The. principal argument urged in support of the demurrer in this case is, that the will is entirely inoperative as a will of real estate, for the reason that the devises are made upon a condition which the testator has omitted fully to express. That the will was therefore never completed and does not declare the intention of the testator as to the disposition of his real estate, and that there are no legal means of supplying the omission and arriving at that intention. It is admitted that the devises contained in the first clause, standing alone, uncontradicted and unexplained, would pass the real estate, and create the sons tenants in common. But it is insisted that the .first clause is to be taken in connection with
I. The first question that seems to present itself for consideration is, whether there is any condition stated in the will, or whether any was intended to be imposed. The rule of construction of wills is, as I understand it, that if the general intention of the testator can be collected, or any one particular object ascertained, expressions militating against that, may be rejected, if plainly appearing to have been inserted by mistake; and so with words apparently omitted by design. (Lines v. Doughty, 5 Vesey, 243. Melish v. Melish, 4 Id. 44. Constantine v. Constantine, 6 Id. 100. Phillips v. Chamberlin, 4 Id. 52. And see 1 John. Ch. 494; Jackson v. Sill, 11 John. 201.) The rule is, says the master of the rolls, in Melish v. Melish, “ That wherever there is a clear mistake, or a clear omission, recourse is to be had to the general scope of the will, and the general intention to be collected from it.” * In Phillips v. Chamberlin, the master of the rolls again observed, that the will “is so inaccurate that though an intention to give a legacy to the Humane Society is expressed, no legacy is interposed and consequently no legacy to them can take place.” Yet from the general intent of the testator to be gathered from the whole of that will, a sum of £20,000 was substituted for one of £30,000 inserted in one of the clauses, the court being clearly of opinion'that the former sum was intended instead of the latter. In Sherrat v. Bentley, (2 My. & K. 149,) the testator gave to his wife all other his real estate, and to her heirs, executors, administrators and assigns for ever. He then directed that none of the legatees should be entitled to take until twelve months after his wife’s decease; and in case his wife should happen to die, in his lifetime, and the before mentioned devises and bequests to her, real as well as personal, should lapse then the estate was given to S. to the use of such persons as his wife should by writing under her hand appoint. The testator then gave some pecuniary legacies : and proceeded to devise and be
The courts have always been anxious to adopt such a construction as will reconcile, and give effect to all parts of a will, and hence it is clear that words and passages, which are irreconcilable with the general context may be rejected, whatever may be the ideal position which they happen to occupy; for the rule which gives effect to the posterior of sever'al inconsistent clauses must not be so applied as in any degree to clash or interfere with the doctrine which teaches us to look for the intention of a testator in the general terms of the instrument, and to sacrifice to the scheme of disposition so disclosed, any words and phrases which have found a place therein. (12 Mass. Rep. 537. Helmer v. Craydock, 3 Vesey, 317.) Let us examine and test this case by the rules and principles considered in the numerous decisions to which we have above adverted. The first clause is, “ 1 give and devise to my sons all my real estate, together with the stock, eye. that are in use or useful on the premises, the land to be divided as hereafter mentioned.” This language is full and explicit, and the revised statutes make it an absolute devise, unless controlled, by the .subsequent clauses in the will. (2 R. S. 33, § 1, 3d ed. Also Id. p. 119, § 5.) The divis
The very fact of charging the payment of his debts on the devisees, constitutes a very strong reason in favor of this construction. It has been held in a large number of" cases, and is at this day settled, that where before the revised statutes, a testator devised lands to his sons, without using words of inheritance, on condition that the devisees should pay all his debts, such devise passed a fee, for the reason that the charge was on the person of the devisee, and he might be the loser if a life estate only passed ; but that a life estate would only be created if the charge was upon the land, or upon the rents and profits. In Jackson v. Bull, (10 John. 148,) the devise was, “ I give to my son David the farm he now lives on, and I give to my two sons Joshua and Ephraim, the farm I now live on, to be equally divided between them, and for Joshua and Ephraim to pay to my daughters Lydia, Betsey and Mahitable, £20- apiece, to be paid by my executors out of my moneys and movables, the debts to be paid out of my estate that I shall die seised of.” The question was whether the sons took an estate in fee, or for life. Kent, Ch. J., in delivering the opinion of the court, says, “ The distinction which runs through the cases is, that when the charge is upon the estate, and there are no words of limitation, the de
When the true meaning of the testator, in the several parts of his will, has been ascertained, the statute declares that it shall be the duty of courts of justice .to carry into effect the intent of the party, so far as it is consistent with rules of law. (1 R. S. 748, § 2.) This has been construed to mean that in the case of wills, the method of the court has been not to set aside the intent, because it cannot take effect so fully as the testator desired, but to let it work as far as it can. (18 Wend. 307. And see Helmer v. Shoemaker, 22 Id. 137, and Schermerhorn v. Negus, 1 Denio, 448.) The testator in this case, AVas probably his own scrivener; the language used in the will, is peculiar and often inartificial and obscure. But it cannot, I think, be doubted that-the intention was to devise the real estate in question to the defendants, and that we would be doing great injustice to the Avishes of the testator, if we were to come to a different conclusion. Furthermore, there is no residuary clause in the will, which furnishes an additional reason for the conclusion that the testator believed, at the time of its execution, that he had disposed of all his property.
II. But suppose it Avas the intention of the testator to charge a condition, in the clause making the specific devise to the defendant, and the other clauses to two of the other devisees. Is the omission to insert the sum which defeats the intended legacy, fatal to the devise 1 The plaintiffs contend that if the devises in the 1st and 2d clauses are not connected together, the second clause is to control, and amounts to a revocation of the first, inasmuch as the two vary; ‘ the first-being in gross, and the second being specific; or, that if the first and second clauses are to be considered as connected, the first is inoperative, except as it is modified and controlled by the second; and that in either case, the entire- disposition of the real estate is made dependent upon the second clause. That the second clause is void for the reason that the -will in respect to it has never been completed by the testator, and does not. express fully his intention as to
But the question is, are the devises void ? In the first place, what has already been remarked, may be repeated here, that when there is an absolute dense, a subsequent provision, void in law, will not affect it. (Schermerhorn v. Negus, 1 Denio, 448. Helmer v. Shoemaker, 22 Wend. 137.) If the will can have a legal execution as to the devises, and its provisions do not conflict with any settled principles of law, it is valid. (Fox v. Phelps, 17 Wend. 401.) If there is no uncertainty of subject or object, the devise is held to be valid. In the construction of wills, the most unbounded indulgence has been shown to the ignorance, unskillfulness and negligence of testators, “bio degree of technical informality, nor the most perplexing confusion in the collocation of words and sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument, the intention of its author, the faint-, est traces of which will be sought out from every part of the will, and the whole carefully weighed together.” (1 Jarm. 815 to 318.) A general intent in a will is to be- carried into effect at the expense of any particular intent, provided such general intent be consistent with the rules of law; for where there are conflicting intents, the most important must prevail. “ Every inaccuracy of grammar shall be corrected by the general meaning, if that be clear and manifest.” (Inglis v. Trustees of Sailors' Snug Harbor, 3 Peters, 117.) To avoid a will for uncertainty, it is not enough that the dispositions in it are so
I have quoted thus largely from this opinion, because I think its reasoning has a strong bearing upon the present case, and answers more fully than I can do, some of the most material objections that are urged against the will under consideration. Here it is contended, as in Comstock v. Hadlyme, that it is not the testator's will; that it has never been completed by him; “ that it is not the will he intended to make.” And yet the devises and bequests were left to stand in that case, notwithstanding the very defect existed there which it is claimed vitiates the devise here. The case of Trippe v. Frasier, (4 Harr. & John. Rep. 446,) also goes to establish the same principle. There the testator left a legacy to the female charity school in Talbot county, if such an institution should be founded on good principles ; otherwise to be distributed among the real distressed private poor of Talbot county. There was no school of that kind, and the legacy was held void for uncertainty. But the rest of the will was held good. So in the case of the ad
It is further contended in aid of the argument on the part of the plaintiffs, that the phraseology, “ by his paying to the other heirs the sum of--is a condition precedent to the vesting of the estate in the devisees, and that the condition being precedent and of impossible performance, no estate can vest in the devisee. It is undoubtedly true, as a general principle, that a precedent condition is one which must take place before the estate can vest or be enlarged, and that it must be literally performed ; and if it becomes impossible to be performed, even though there be no default or laches on the part of the devisee himself, the devise fails, and even equity will not relieve. (4 Kent’s Com. 125. 1 Jarm. on Wills, 806. 2 Colee, Lit. 206, B. Harvey v. Ashton, 1 Atk. 361. Vanhorn’s lessee v. Dorrance, 2 Dall. 304, 317. Taylor v. Mayer, 9 Wheat. 350.) But the rule is different if a condition subsequent becomes impossible. In that case, the estate will not be defeated or forfeited. (2 Bl. Com. 154, 5, 6. 2 Vern. 339. Powell on Devises, 202. Finley v. King’s Lessee, 3 Peters, 346, 374, 5, 6:)
If I am correct in the first position which I have taken, there was no condition created; the words “ by her paying to the other hens the sum of-” being simply void, and intended by the testator to be of no effect, and to be so construed. If the testator had filled up the blank with a definite sum, there would have been a condition. But I am not prepared to concede that it would have been a condition precedent, or that the language used creates such a condition. It is another well established
In another case, a person having three daughters devised lands to his eldest daughter, upon condition that she should, within six months after his death, pay certain sums to her two sisters, and if she failed, then he devised the land to his second daughter, on the like conditions. The court said it would enlarge the time of payment, though the lands were devised over, and that in all cases that lie in compensation, the court may dispense with the time, even in the case of a, condition precedent. (Woodman v. Blake, 2 Vern. 222, cited in 2 Cruise's Dig, 47, § 36, 4.) So a person devised land to his kinsman J. S., he paying £1000 apiece to his two daughters who were his heirs at law. J. S. made default, and the daughters recovered in ejectment. It was decreed that the devisee of J. S. should be relieved on payment of the principal and interest, though in favor of a volunteer and to the disinherison of the heirs. (Barnardiston v. Fane, 2 Vern. 366. 2 Cruise's Dig. 48, § 37.) In Doe v. Scudamore, 2 Bos. & Pull. 289, Lord Eldon remarks, on page 295, “ I take it to be fully settled, that a condition is to be construed to be precedent or subsequent as the intent of the testator may require.” And Heath, J. on page 297, says, “ It has been truly said that there are no technical words, by which a condition precedent is distinguishable from a condition subsequent, but that each case is to receive its own peculiar construction according to the intent'T the devisor. The question always
It is most consistent with the intention of the testator, as well as with the cases on this subject, to hold, that the condition (if any here) was subsequent. If the condition was subsequent, the cases before cited show that if it is, or becomes, impossible, the estate will not be defeated or forfeited. An impossible condition is the same as none; it is void, and there can be no breach. It leaves the will the same as if the void clause or sentence was stricken out, and then of course it devises an absolute estate in fee simple.
Thus the same conclusion is arrived at on this point, and we come back to give effect to the plain and undoubted intent of the testator. The same remarks and reasoning will apply to the remaining point urged by the plaintiffs’ counsel, that the clause must be regarded as a limitation of the estate, which being left undefined and impossible to arrive at, no estate,has vested. The testator has failed to impose any limitation to the devise. He probably, as before remarked, intentionally omitted • so to do. Conditional limitations are never to be extended beyond what is absolutely necessary from the cóntext of the will, and shall not be supposed to govern any disposition, except that upon which they may naturally be supposed to' attach. (Holmes v. Craydock, 3 Ves. 320. McLean v. Macdonald, 2 Barb. S. C. Rep. 534.) It is said that no provision is made in the will for the payment of the legacies. That is no argument against its validity. The debts are provided for, and there is no disposition made of the personal property, except such as is mentioned in the will. When no direction is made, the law appropriates
Willard, Cady, Hand and C. L. Allen, Justices.]
There must be judgment for the defendant on the demurrer, with leave to the plaintiff to amend on payment of costs.