2 Abb. Pr. 418 | NY | 1866
The husband of the plaintiff died leaving a will, and therein bequeathed the whole surplus of his personal estate remaining after the payment of debts and legacies, and the plaintiff is entitled to no share of such estate unless it is obtained by the terms of the will itself. The testator by the fifth clause of his will, bequeaths and devises all the rest,
I. The testator does not make an absolute disposition of the residuary personal estate to his children, but expressly burdens it with the same charge as
I think the plaintiff not entitled to any interest in the personal' property under the fifth clause of the will of deceased, and that distribution is to be made to the children of deceased, share and share alike, named in that clause, or their representatives.
Lott, J.—I concur.
From the judgment entered in pursuance of-this decision the plaintiff, Mary O’Hara, appealed to the court of appeals. .
III. The testator uses the words “subject to the thirds of my wife” not as an actual lien upon his personal estate, but as descriptive of an interest.which attached to her by law, by reason of her marriage; .and though it was contingent and liable to be defeated by the disposition of the property by him, it was, nevertheless, a certain and determinate interest, and as such expressed the purpose of the testator. It is like the interest of a husband, under our present law, in the use of the real estate of his wife who dies without exercising the jus disponendi in her life-time. The testator speaks of it, as the highest legal authorities do, as a contingent interest of the wife, which he wishes to
The thirds of a widow in the personal estate of which her husband died seized was. originally, at common law, a right which attached to her on marriage, and could not be disposed of by him. One-third of his personal estate went to his widow absolutely, one-third to his children, and one-third he might dispose of. Hence undoubtedly the origin of the phrase thirds, as distinct from dower. The law was subsequently changed, but so far only as to permit him to dispose of her third by will. But difficulties existed in other respects as to the mode of distribution in cases of intestacy, and to obviate them the statute of distributions was- passed, which does not, therefore, create this right, but merely regulates the administration of the personal estate, in conformity with the common law. . There is, therefore, an interest of which a precise idea is given by the expression thirds (Druce v. Denison ut supra; Garley v. Garley ut supra; Roberts on Wills, II., 143; Am. Ed., Precedents; Blackstone Com., book II, chap. 32).
IY. Equally inapplicable to this case is the reasoning that the testator has not given or bequeathed any of his personal estate to his wife. A gift or bequest, in form, was not necessary. All that was necessary was to retain her interest in her; and reserve it from the general bequest to his children, as his language purports to do. .
Y. To deprive a wife of her interest in the personal estate, under the statute, requires an express and unequivocal disposition of the estate to others. The law favors the widow’s right to dower, because it is a marital right; and for the same reason it will.favor her interest in the personal property so far as not to 'allow it to be defeated unless by a distinct and explicit act on the part of the husband showing an intention to cut her off from the personal property entirely (Lasher v. Lasher, 13 Barrb., 109, per Willard, P. J.—“The claim of dower is always favored).” .
YI. The intention of the testator to make some provision out of his personal property for the support of his widow may .he seen in the circumstances of the ease as they appear in the
The clause,-therefore, is to be construed necessarily as intending a provision for her support, and not merely a bequest and devise to his two children. He meant to be as just to her, in regard to his estate, as the law would have been in case of his intestacy. He gives her no more, upon the construction here insisted upon, than her just share according to the judgment of the law when left to its determination, and gives to the .children all they are, according to the same judgment, entitled to. The law will not construe his will contrary to what itself considers equitable, if it be consistent with the intention of the will.
I. The appellant, as the widow of Peter O’Hara, can claim no part of the surplus of personal estate of deceased under section 75 of 2 Pev. Stat., 96, because,—1st. The deceased did not die intestate. 2nd. The whole surplus was bequeathed to his two children, Edward and Cecilia.
II. The testator has" expressly disposed of all the surplus of his personal property to his children. Edward and Cecilia; and there is nothing in the bequest from which it can be implied that he intended to give his widow one-third of his personal estate (2 Jarman on Wills, 742; Colleton v. Garth, 6 Sim., 19).
III. The expression, “ subject to the dower and thirds of my wife, Mary O’Hara,” cannot be construed into creating a bequest of one-third of the personalty (Atkinson’s Common Form
IV. To sustain the appellant’s claim it will be necessary to alter the fifth clause of the will so as to read :—“ I give and de-' vise all the rest, residue and remainder of my real estate to my son Edward Lawrence O’Hara and daughter Cecilia A. O’Hara, to be divided between them, share and share alike, subject nevertheless to the dower of my wife Mary O’Hara; and I give and bequeath all the rest, residue and remainder of my personal estate to my wife Mary, my son Edward and iny daughter Cecilia, to be divided between them, share and share alike.” The doctrine of transportation and substitution of W'ords in a will has. never been carried to that extent. If the words “ thirds” can be disjoined from “ dower” in the will so as to apply to personal estate, what is to prevent it being applied also to the real estate, and .thus give the appellant in addition to her dower, one-third absolutely of the remainder of the real estate ?
V. There is nothing in the surrounding circumstances of the testator to lead to the inference that he intended, or even desired, to give his wife one-third of the surplus of his personal estate. 1st. He gave her a dwelling-house and all the furniture therein. 2nd. She was entitled to dower in one hundred thousand dollars of real estate. 3rd. She had no children to support out of her income. They were all provided for in the will. 4th. It does not appear that the will was drawn by one incompetent to express in words the intention of the testator.
This is a case made and submitted to the general, term of the supreme court, for th¿
Thé plaintiff contends, that by this clause of the will, she is entitled to one-third part of .all the personal estate of said Peter O’Hara, remaining after the payment of his debts, and the legacies in said will mentioned.
The supreme court'held that the personal and real estate of the testator were given to his two children, share and share alike, and that his widow took no part of his personal estate.
By the common law, as it stood in the reign of Henry the second, a man’s goods were to be divided into three equal parts, of which one went to his heirs or lineal descendants, - another to his wife, and the third was at his own disposal; or if he died without a wife, he might then dispose of one moiety, and the other went to his children ; and so, e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other, but if he died without either wife or issue, the whole'was at his own disposal. The shares of the wife and children were called their reasonable parts;, and the writ de rational lie parte honor um was given to recover them (Black. Com., Book II. Ch. 32).
Such continues to be the law in case of intestacy; but the owner of personal property, was subsequently authorized by 'statute to dispose of the same by a last will. From this provision of the common law, has undoubtedly arisen the general designation of this third part of the husband’s personal property, which he could not dispose of by will, and which passed to the widow in case of intestacy, as the widow’s thirds. The-widow was also endowed of one-third part of all the real estaté whereof her husband was seized during coverture, but in which she had only a life estate. This is called and known as. her dower, and was a lien or charge on such real estate whereof the wife could not be divested, except by her own act
In Druce v. Denison, (6 Ves. Jr., 385), a provision was made, which was declared “ to be in lieu, bar and satisfaction of all dower or thirds out of his real and personal estate.” On the part, of the plaintiff, it was contended that the expression “ dower or thirds,” was to be considered as applicable only to real estate, while on the part of tlie defendants it was urged as to the rights of the plaintiff to the personal estate, she. was deprived of dower, and all right to any share of the personal estate in all events. Lord Eldon said, “ As to the word ‘ thirds,’ the clear intention must be taken to mean her interest in case of intestacy. If that word did not occur, I doubt whether the personal estate would not have been included under the word dower. The word ‘ thirds,’ it never used accurately. It is a sort of expression in common parlance descriptive of the interests upon an intestacy.” ‘‘The plaintiff’s argument is too ingenious upon the construction of a settlement, and cannot apply when that word is connected with ‘ dower,’ which would apply to both events, whether there are children or not.”
If therefore, in the present instance, the testator had given to his wife her dower and thirds, we should have been authorized in holding, that she was endtled to one third part of his personal estate, in addition to her dower, after the payment of his debts and legacies. But here there is an absolute and unqualified disposition of all the rest and residue of the testator’s personal estate, to his two children, to be divided between them, share and share alike. The language used, precludes the idea, that the testator had any intention that his widow should take one-third part of. his personal estate. And the subsequent clause of the will, serves only to strengthen this view. The absolute disposition of all his real and personal estate to his two children, was made “subject, nevertheless, to the dower and third's of my wife, Mary O’Hara.” • The testator had clearly in his mind, when he used this language, the fact that there was a charge or incumbrance upon the estate, given to his children, subject to which only could they take it. This was the right of dower of his widow in one-third part of his
The judgment appealed from should be affirmed.
Judgment afiirmed.