108 N.Y.S. 46 | N.Y. App. Div. | 1908
' The decision of .this appeal entirely depends upon the construction of the last part of the 3d paragraph and the 4th paragraph of •the will of'Catherine L: Williamson and the codicil thereto. If the testatrix’s husband took an absolute fee under the will the judgment. must be affirmed; otherwise not.- Those parts of the will and the codicil in- question read as follows:
“ Third. *’ "" *' All the rest, residue and remainder .of my personal estate and all my real estate I give, devise and bequeath to my beloved husband, William K. Williamson, for and during his natural life, and it is my will and I do hereby order and direct that -he shall- be at liberty to. use as much of the principal of my said residuary personal estate as he. may need for any. purpose whatsoever.
“ Fourth. I do hereby authorize .and empower my said Executor at any time in -his discretion, and whenever he may deem it for the best interest of my estate, to sell and dispose of all or any part of my real estate, and in cáse of such.sale I do hereby, authorize and empower- my said husband to use as much, of the proceeds of such sale as he may desire and for kny purpose whatsoever, and I do . hereby'.order. and direct that.my said husband, shall not in any way whatever be accountable or responsible .to my heirs for any such 'use of my said estate.”
By her codicil slm provided for an additional legacy of $1,000, and, referring to the 3d clause of her will, -she added, after provid
Section 133 of the Real Property Law (Laws of 1896, chap. 547) provides: “ Every power of disposition, by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit, is deemed absolute.” This and. the other related sections of the Real Property Law have been passed upon repeatedly by the Court of Appeals, and it seems to be well settled that because, of the statutory provision the beneficiary under a wifi, like the one in question, takes an absolute fee, and especially where, as in this case, “ no remainder is limited on the estate of the grantee of the power.” (Real Prop. Law, § 131.) _ The terms of the statute are plain and have been given full effect. (Cutting v. Cutting, 86 N. Y. 534; Matter of Moehring, 154 id. 423; Deegan v. Wade, 144 id. 578; Hume v. Randall, 141 id. 499.)
There can hardly be serious doubt that the husband took the absolute fee, and the judgment should be affirmed.
Woodward, Gaynor, Rich and Miller, JJ., concurred.
Judgment affirmed, with costs.
