23 N.Y.S. 429 | N.Y. Sup. Ct. | 1893
Apparently the intention of the testator was to confide to his wife the power “to have and to hold” Ms “property and estate, both real and personal,” and to give her the power to-use the income thereof, as well as the body of-the estate; and foreseeing that she might not use up or consume the whole of the property, he provided for two contingencies—First, that in -the event she did not make a .disposition of any of the property that remained at the time of her death, the same should pass to his son, Frederick; and, secondly, he apparently clothed her with power to dispose of what remained of the property .at her death by will; and he circumscribed the execution of that power by a declaration of Ms expectation and desire, to be observed and followed by his wife in the event she exercised the power of disposition of the property; and in doing so he used the words, “and I expect and desire that my said wife will not dispose of any of said estate by will in-such a way that the whole that might remain at her death shall go out of my own family and blood relation.” Such interpretation,— such declaration of the intention of the testator seems to be reasonable in the light of the language used by the testator. Such construction gives full force and effect to all the language used'in the will, whereas the construction put thereon by the surrogate seems to be in defiance or disregard of the last clause of the will. When the testator, by the language in the early part of the second clause of -the will, had provided liberally for Ms wife, evidently two ideas came to Ms mind in respect to Ms property; the one being a contingency that his wife might leave at the time of her death, unexpended