27 N.Y.S. 674 | N.Y. Sup. Ct. | 1894
Interpretation of the testator’s will, and a declaration of his intent, as evidenced by the language of the will, must be had in order to solve the question presented by the appeal. Respondents’ learned counsel call our attention to a provision of the Revised Statutes, which is as follows: “Every grant or devise of real estate or any interest therein shall pass all the interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied,” (Rev. St. [8th Ed.] p. 2461, § 1:) and under that statute, and the language of the will, contend that the testator devised in fee to the widow the house and lot in question, and call our attention to cases which have interpreted the statute, and in which it has been declared that all the interest of the testator passed under language used, unless it appear by express terms, or it was nec
We have not overlooked the argument of the respondents, based upon the circumstance that in October, 1856, the testator conveyed a limited interest in the premises in question to his wife. The language then used is quite indicative of an intent on his part to vest her with only the use of the premises during her widowhood or life; and in answer to the argument that is made that it was his intention, by the use of the language found in his will, to give her a greater interest in the real estate, it may be observed that he was presumed to know the law that at that period of time a conveyance from husband to wife direct was not valid at law. Johnson v. Rogers, 35 Hun, 267; Graham v. Van Wyck, 14 Barb. 531; Winans v. Peebles, 32 N. Y. 423. It is not unreasonable to suppose that he used the language in the will relating to the real estate to confirm to her a life use of the real estate. We think the