145 N.Y.S. 402 | N.Y. Sup. Ct. | 1914
The action is in partition and involves the construction of the will of Joseph Furness, late of the town of Oswegatchie, St. Lawrence county, N. Y. He was born in or about the year 1808, and died June 27, 1875. His wife, Margaret Furness, died November 14,1890. John R. Furness, their only child, born in 1836, married one Rebecca Ann Bush. They had two children, William Joseph Furness, born December 12,1869, and Lulu Furness, born July 20,1870. Rebecca Ann died November 4,1872, and her husband, John R., died March 9,1873. The said Joseph Furness
“ Third: And whereas my only son, John B. Furness, lately departed this life his wife having also died leaving an infant son, William Joseph, and an infant daughter Lulu Furness, him surviving, and it is my will and desire that the said infants shall be brought up by their paternal relatives who reside in the United States of America, and not by the maternal relatives who reside in the Dominion of Canada, I give, devise and bequeath two equal undivided third parts of all my estate real, personal and mixed which shall remain unexpended at the decease of my said wife to my said grandson William Joseph Furness, his heirs and assigns forever, and the other remaining equal undivided third part thereof to my said granddaughter Lulu Furness, her heirs and assigns forever; and in case one of said grandchildren should die without issue, then the survivor shall have and take the whole of said residue. On condition nevertheless, that my said grandchildren shall respectively observe and conform to my will and desire as above expressed in the third clause of my will. But in case both my said grandchildren shall refuse and neglect to conform, then it is my will that neither shall take anything under this my will. In case one shall conform thereto and the other neglect and refuse to do so, then it is my will
“ Fourth-. In case both of said grandchildren should die without issue of the body, then I give, devise and bequeath all my property, real, personal and mixed to the following named persons and to their heirs forever to take per stirpes and not per capita, viz: Alexander Furguson, (son of Duncan Furguson), Mary Elizabeth Glinn, Joseph Furness (son of Thomas Furness) who resides in England, Isabella Coats and Mary Smith (daughters of John Furness, deceased, late of Prescott, Province Ontario), Joseph Furness (son of William Furness of Auburn, N. Y.), George Furguson, (son of Duncan Furguson), Margaret Rodgers and Caroline Russell, (daughters of Robert Bodgers) to be equally divided between them, share and share alike. ’’
One of the persons named.in said fourth clause was a cousin of testator and the others were nephews and nieces, either of the testator or of his wife. The latter, one Duncan Furguson and one John McCall were named executors. William Joseph Furness and his sister, Lulu Furness, observed and conformed in all respects to the will and desire of their grandfather. They were brought up by their paternal relatives in the United States, and not by their maternal relatives in Canada. Lulu died January 18, 1885, unmarried and without issue. William Joseph thereupon took possession of testator’s property and received and retained all the rents, issues and profits thereof until his
The solution of the case depends upon the answer to the question whether the testator in making the devise or devises over, which he made, in case either or both of his grandchildren should die without issue, referred to a death without issue in his own lifetime, or at any time. It is a general rule of construction, where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death without issue, that the words refer to a death without issue in the lifetime of the testator, and that the primary devisee surviving the testator takes an absolute estate in fee simple. Vanderzee v. Slingerland, 103 N. Y. 47, 55. This rule is applied even in cases where there is a precedent life estate. Livingston v. Green, 52 N. Y. 118; Embury v. Sheldon, 68 id. 227; Matter of Mahan, 98 id. 372; Matter of Brown, 154 id. 313; Lewis v. Howe, 174 id. 340; Riker v. Gwynne, 201 id. 143; Davidson v. Jones, 112 App. Div. 258. In such cases,
We are thus brought to the question of the intention of the testator in this case. He was sixty-five, when he made his will. It was made about three weeks after the death of his only son, whose wife had died about four months before. Their children, one three and the other four, were testator’s only living descendants. His wife was living. After directing the payment of his debts and funeral expenses and after giving his wife a life estate in all of his property, he divides same into two parts, giving his grandson a vested fee in two-thirds and his granddaughter a vested fee in one-third, subject to be defeated by either one of two contingencies ; first, death without issue, and, second, refusal to comply with his wishes, as expressed in the will, with regard to their training. The will does not, in terms, provide that the issue, if any, of the grandchildren, shall take, in case of their death leaving issue, but that is the only reasonable inference. Bradhurst v. Field, 135 N. Y. 568; Matter of Cramer, supra. This construction does not, at least necessarily, create a clash with the statute against perpetuities and the other con
The second of the contingencies, namely, refusal to comply with the wishes of the testator, as expressed in his will, is of importance only as it may throw light on his intentions, for the reason that his grandchildren did comply. It is urged by plaintiff that the taking by each is conditioned upon arrival at mature years in the custody of their paternal relatives, and that this was a consummation which testator could not reason
Judgment accordingly.