Miller v. Philip

5 Paige Ch. 573 | New York Court of Chancery | 1836

The Chancellor.

This is a mere question of construction, as to what the testator intended by the expression “ at the expiration of three years from the date of my decease, or the decease of my beloved wife,9’ And I think the construetian which the vice chancellor has given to this clause of the will is as favorable to the defendant as the language of the will can bear. It is very evident to my mind that the testator has not, by mistake, substituted or for and in this case ; and I must arrive at such a conclusion before I can give a construction to the will which would postpone the payment of the legacies until the expiration of three years after the death of both the testator and his wife. He either intended to make the legacies payable in three years after his own death, and sooner if his wife should happen to die before that time ; or he intended to make them payable on the death of the wife, if she survived beyond the three years, so that they should not be payable, in any event, within three years after his own decease. This last is the construction adopted by the vice chancellor; and I think, upon the whole, it is the correct one. It is evident that the testator contemplated the event of his xvife’s surviving him, as he has carefully provided for her in the will. He therefere- intended to give his son three years after his oxvn decease, to raise and pay off these legacies; and also to suspend the payment beyond that period, so long as the support of the widow continued to be a partial charge on the estate, upon which these legacies were also charged. And, for this purpose, it is only necessary to insert the word on in the clause of the will in question, to make it perfectly intelligible. It would then read, “ I order that my son Wilhelm us shall, at the expiration of three years from the date of my decease, or on the decease of my beloved wife Catharine, pay,” &c. The effect of xvhich would be to postpone the payment until the death of the widow, if she lived beyond the three years, which the testator intended, in any event, to give to the devisee of the real estate for the payment of these legacies.

As the vice chancellor has put the proper construction upon the will, his decree must be affirmed, with costs.