22 N.Y.S. 355 | New York City Court | 1893
One Raphael Gilbert died June 6,1863, leaving a holographic will dated March 16, 1852, which ivas duly admitted to probate August 3, 1863. Said will is, in part, as follows: “ This, my last will and testament. Be it known by these presents to all whom it may concern, that I, Raphael Gilbert, of the city of Brooklyn, in the state of Hew York, and of the United States of America, do give to my wife, Maria, on the day of my death, a free and uncontrollable use and occupancy of my houses and lots situated Ho. 121 Prospect street, 151 York street and 335 Bridge street, as long as she shall continue my -widow, hut if she shall cease to be my widow by death, then the aforesaid houses and lots shall be sold and the moneys arising therefrom shall be equally divided among my children, viz.: Philo Baker Gilbert, Wesley Carlo Gilbert, Henry Still Gilbert, Wilbur Fisk Gilbert, or their heirs. But if she shall cease to be my widow by marriage, then the aforesaid houses and lots shall be sold, and one-lialf of the moneys arising therefrom shall be hers, to be used for
The testator left him surviving his widow and said four sons as his only heirs at law. The widow, Maria, died January 31, 1891, never having remarried.
In 1868, Philo B. Gilbert was adjudged a bankrupt, and all his property was conveyed to his assignee, and, subsequently, by virtue of sundry mesne conveyances, became vested in the defendant, Carrie G. McClellan. The said Philo B. Gilbert predeceased his mother, leaving children, his heirs, at law, him surviving.
On April 18, 18J9, the said Wilbur F. Gilbert, with his wife, conveyed all his right, title and interest and share in the said premises to one George F. Miller, and subsequently, by virtue of sundry mesne conveyances, the same became vested in the plaintiff. The said Wibur F. Gilbert also predeceased his mother, leaving children, his hems at law, him surviving.
Wesley C. Gilbert survived his mother, and died May 26, 1891, and under his will, his interest in said real estate has-been conveyed to his brother, the defendant, Henry S. Gilbert, whose ownership of a one-lialf interest in said premises is not here disputed.
This action was commenced for a partition of said premises.
The learned trial judge has found inter alia, as conclusions of law, that under said will and by the laws of this state, said four children of the testator, on his death, became seized of a
The appellants, the children of Wilbur F. and of Philo B. Gilbert, have filed exceptions to said conclusions, and seelc to obtain a new trial on said exceptions. Their contention is, that, under the will, there was no devise of the lands, bat only of the proceeds of sale thereof, which were to be divided among the testator’s children, at and not until the death of the widow; that there was an equitable conversion of the realty into personalty on her death; that nothing passed under the deed of Wilbur F. Gilbert, and under the bankruptcy proceedings against Philo B. Gilbert, and that as they both predeceased their mother, the testator’s widow, their children are now entitled, on her decease, to take the shares of their respective fathers.
It is a fundainental principle in the construction of wills, that the intent of the testator is to be determined from the instrument taken as a whole, rather than from isolated or particular phrases, and this rale applies with greater force where, as in the present case, the will was drawn by the testator himself, and the form thereof and the language and expressions used clearly indicate that the draftsman was unskilled in matters of that character. Lytle v. Beveridge, 58 N. Y. 592.
Applying this rule to the will before us, we are of the opinion that the testator intended to give all his property to his four sons, to be equally' divided between them, subject only to the life estate of the widow in the whole thereof, provided she did not remarry, but in case she remarried, then she was only to have a life estate in one-half of the realty, and the other half was “ to revert back to my children,” as the testator puts it. We think that a fair and reasonable inter
Nor can we see that the use of the words “ or their heirs,” following the names of the testator’s children, works in support of the appellant’s contention. Bearing in mind that the testator was unskilled in the use of legal phraseology, those words were, we think, intended to be used to vest his realty absolutely in his children; but even if they should be construed as words of substitution, then, on well-settled rules, they should be construed as referring to the contingency of the death of one or more of testator’s children during his lifetime. As all of the testator’s children survived him, the words of substitution (if they were such) would be inoperative.
The direction given by the testator that, on the death or remarriage of his widow, his real estate should be sold, was merely a provision for the equal and convenient division of his property; it consisted of three houses and lots incapable of equal partition among his four sons, and the direction for a sale was the simple and natural method of arriving at what each son should he entitled to out of his property.
We think that the exceptions should be overruled, and the motion for a new trial denied, with costs.
Clement, Ch. J., concurs.
Motion for new trial denied.