21 N.Y.S. 379 | N.Y. Sup. Ct. | 1892
The material question in this case involves the construction of the fourth clause of the will of Elias Smith, deceased, which is as follows, to wit: “Fourth. I give and devise to.my daughter, Phebe T. Lawrence, during her natural life, the eastern part of the farm where I now live,” etc.; also three other tracts of land; also equal undivided one half of a tract of thatch land. “Igiveand devise the aforesaid several tracts of land, after the decease, of my daughter, Phebe T. Lawrence, to the children which she now has or may hereafter have living at the time of her death, as tenants in common, to them, their heirs and assigns, forever.” These are the lands in this action.' The said Elias Smith died April 20, 1839, made the will January 21, 1839, and' same was probated 25th of May, 1839, as a will'of real and personal property. At. the time of the death of testator, Phebe T. Lawrence was living, and then had three children. She died January 30, 1889, not having had any more children. She survived all of these three children, but she left grandchildren. ■ The question is whether on the death of Elias Smith the fee of the part of the estate which was devised to Phebe for life vested in her children then living, and therefore now belongs, to the grandchildren of said Phebe and their representatives. This question was fully discussed by the learned judge at special term, and I see nothing that needs to be added to the argument contained in his opinion. Many arguments may be suggested upon either side, but it comes down to a question of intent, to be solved by reference to ambiguous expressions contained in the will. We think this case fairly falls under the role laid down in Re Estate of Brown, 93 N. Y. 295, and that calls for an affirmance of the judgment; Judgment affirmed, with costs. All concur.
