75 N.Y.S. 674 | N.Y. App. Div. | 1902
The action is brought to partition certain property,, the complaint ¡alleging that the plaintiff, who was the widow and residuary devisee under the will of James McDonald, deceased, and the defendant Catherine McDonald, who was a sister and devisee with her sister'Margaret of the land in question in this action under the will of said dece
It is claimed that this devise to the testator’s two sisters was a devise to them as a class and that thus the principle of survivorship applied ; but we think from the language used that this construction of the will cannot prevail. The bequest is to his sisters Margaret and Catherine, to them and their heirs forever. The devisees are named, and although their full names are not specified, they are sufficiently identified by the words “ my sisters Margaret and Catherine.” The devise is, therefore, not to his sisters as a class, but to the individuals designated, and the property is given to them and their heirs forever. By section 56 of the Beal Property Law (Laws of 1896, chap. 547), it is provided that “ every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.” There is no question but that had Margaret McDonald outlived the testator, these two sisters would have taken the land as tenants in common. The language used plainly indicates a devise to individuals, and not to a class. No words of survivorship are used. There is no indication from which it could be inferred that the testator intended that the survivor should take in case of the death of one of the devisees ; and the fact that he made a codicil to the will after the death of Margaret McDonald without changing this provision, would seem to
There is no indication in the will, or in the circumstances that existed when the will was executed, that would justify the court in changing the legal effect of the language used by making this a devise to a class, instead of to the individuals specifically named as the devisees.
It follows that the. judgment appealed from was right, and should be affirmed, with. costs.
Van Brunt, P. J., Patterson, McLaughlin and Hatch, JJ.,. ■ concurred.
Judgment affirmed, with costs.