22 N.Y.S. 198 | N.Y. Sup. Ct. | 1893
As no evidence was produced upon the trial, and as it is claimed the court dismissed the complaint on the ground the complaint did not state facts sufficient to constitute a cause of action,
“In Henderson v. Blackburn, 104 Ill. 227, and Paine v. Barnes, 100 Mass. 470, cited by the learned counsel for the appellant, there was an express limitation of the gift by the use of the words ‘during her lifetime,’ .in the former, and ‘during her natural life,’ in the latter. In the absence of such' express terms, and when the effort to qualify the estate depends wholly upon necessary implication, a strong and clear case is required to satisfy the statute. ”
In the case in hand it cannot be doubted that the widow had power to dispose of the property “during her natural life,” if she needed the same “for her comfort and support;” and for that purpose she was “to have and to hold the property during her natural life.” Greyston v. Clark, 41 Hun, 125, and cases referred to in the opinion.
The learned counsel for the respondent calls our attention to Vernon v. Vernon, 53 N. Y. 351. In that case the language in the will which fell under consideration gave to the wife “ the house in which I [testator]
“ It is supposed that the direction that the executors, in case oí a sale by them of the house and adjoining lots, shall invest the proceeds for her benefit ‘ during her life,' indicates an intention to give her a life estate, only, in that property. The language employed by the testator in the devise to his wife, although no words of inheritance are used, is appropriate to convey a fee. Disconnected with the power of sale subsequently given, no doubt could be entertained that the gift of the fee was intended. The power of sale was contingent, not absolute. It might never be exercised. There is no limitation of the interest of the wife in the land to the use, only; and, if the power of sale should never be exercised, her interest should not be cut down to a life estate by a vague and uncertain implication arising from the direction that in case of a sale the proceeds should be invested for her benefit for life. The direction as to investment is to be regarded simply as a careful provision made by the testator for the purpose of securing to the wife the enjoyment of the property given to her; and the proceeds arising from the sale, in case the power of sale was exercised, would belong to her, subject to the trust for investment, for her benefit.”
We think the case does not support the position taken by the respondent, in which he asserts that the language of the will before us gave the fee “subject only to the legacy to the church, and enough for her comfort and support during her natural life, if she needed the same.” It is not needful, in this case, to determine that she did not have “the right to consume for her comfort and support, during her natural life, if she needed the same,” all of the estate and property left by her husband, so that “after the death of the wife” there should not be enough of the property left to pay the legacy to the church. In passing, it may be remarked that probably it was the intention of the testator that the church legacy should encounter the contingencies that might surround her, requiring or authorizing her to use the whole estate for her comfort and support, and that if she did so the legacy to the church would fail.
Respondent calls our attention to Schult v. Moll, 132 N. Y. 122, 30 N. E. Rep. 377, in support of his contention that the fee passed to the widow. Upon examination of that case we find the language quite unlike the language used in the case before us. After the testator had provided expressly for two thirds of his estate, he added the words, “to my wife, Babetta Hablawitz, one third; that is to say, her dower right to my estate;” and those words were construed, in connection with the whole phraseology, to cony an absolute estate to the wife, of one third, and the conclusion was reached that “if the words, 1 that is to say, her dower right,’ were omitted, the devise would unquestionably carry the fee. For the reasons already given, the conclusion is reached that they were not employed for the purpose of restricting or cutting down the estate, and the clause should accordingly be read as devising to Babetta the fee of an undivided one third of the testator’s real estate.” We see nothing in the case which sustains the position assumed by the respondent.
2. But it is claimed by the respondent that, “because the courts have limited this form of action to those cases in which the alleged invalidity
“The case made b3' the complaint and findings was a proper one for the removal of a cloud upon the title of the plaintiffs to the real estate which they had inherited from their mother. The mortgage was certainly an apparent lien upon their title, and the facts which constituted their defense to it could-only be established by extrinsic evidence. ”
And later on in the opinion it was said: The action is brought—
“to compel the cancellation of an instrument to which they have a good defense, but which constitutes an apparent lien, and, so long as ft remains outstanding, injuriously affects their title, and their defense to which, resting on extrinsic facts to be established by evidence, may be imperiled by the lapse of time, and the consequent loss of testimony. * * * It is an acknowledged head of equity jurisdiction, resting on these grounds, to remove clouds upon the title to land at the suit of the owner of the fee. Such owner has the right to invoke this aid, and to have an apparent, though not real, incumbrance discharged of record at any time while he continues to be owner. The cause of action is not the creation of the cloud, but its existence, its effect upon the title of the owner, and his right to have it removed. ”
The doctrine we have just quoted was referred to approvingly in Smith v. Reid, (N. Y. App.) 31 N. E. Rep. 1082. In the case in hand, as already stated, the complaint alleges that the income and use of the estate devised was sufficient for the comfort and support of the mortgagor, and that no part of the corpus of the estate was needed or used for that purpose, and that before the commencement of this action the defendant was requested to release the premises, and discharge the mortgage therefrom, and that he refused to so do, and that he insisted before the action was commenced that the mortgage was a valid, subsisting lien upon the premises, and he has taken that position in the answer that was served in this case. We think the special term fell into an error in refusing to consider the issues joined between the parties alter hearing facts bearing upon the merits thereof, and that a new trial should be had, where all the questions important to determine the rights of the parties may be presented, and fully considered, after the evidence shall be given relating thereto. Judgment and order reversed; and a new trial ordered, with costs to abide the event. All concur.