Tuthill v. Davis

105 N.Y.S. 672 | N.Y. App. Div. | 1907

Miller, J.:

The question presented by this appeal involves the construction and validity of the 3d clause of the will of William Z. King. The material portions of said will read as follows, viz.:

“First.. I give, and bequeath to my wife, Mary E. King, the house and lot where I now live during hen lifetime, and at her decease I will that the said property shall go to my sisters, Eliza Tall man, Cynthia A. Tuthill, Emily M. Seaward and to Lilly Corwin, share and. share alike. * * *

“ Third. I give and bequeath all my personal property of every name and kind to my wife, excepting my piano, which I give to Lilly Corwin aforesaid.

“Whatever personal estate shall remain at the decease of my wife I give and bequeath to Buell Davis and Abagail Davis, the parents of my wife, or if they are not living, then to my sisters aforesaid and Lilly Corwin, share and share alike.”

The widow has died. ' The learned court at Special Term held, upon the authority' of Van Horne v. Campbell (100 N. Y. 287), that the widow took an absolute title to the personal property under the 3d clause of the will, and that the 2d paragraph thereof was void for repugnancy. That case decided that at common law an executory devise or bequest was void if the first taker was given the absolute power of disposition, but it did not determine that the rule had not been changed by the provision of the Revised Statutes re-enacted by section 47 of the Real Property Law, which is applicable to limitations of future or contingent interests in personal property (Pers. Prop. Law [Laws of 1897, chap. 417], § 2). The case of Leggett v. Firth (132 N. Y. 7) decided that the rule of the common law as declared in Van Horne v. Campbell (supra) was changed by the Revised Statutes.

But, irrespective of the foregoing, we think that a fair construction of the will shows that the provision in question was valid even under the rule of the common law, and that by the 3d clause- of the will the testator intended to give his widow the use of his personal property for life, with the beneficial power of disposition with remainder over to the persons named in the 2d paragraph of said clause. To be sure, standing alone, the language of the 1st paragraph of the 3d clause is sufficient- to vest the absolute ownership, but it is identical with the language of the 1st clause of the will, in which he gave.- the wife the life use of the house and lot-, excépt that the words “ during her lifetime,” found in the 1st clause, are omitted from the 3d, and it is evident that those words were omitted simply and solely because he desired to give the widow the beneficial power of disposition of the personal property. It is plain that this will was not drawn by one learned in the law, but the testator’s intention is free from doubt. He intended to give his wife the use of- both the real and personal property during her life, with the beneficial power of disposition of the latter, remainder over to the persons named. .(Crosier v. Bray, 120 N. Y. 366.) We are unable to perceive that the circumstance that the provision disposing of the remainder was contained in a codicil in "the case last cited- distinguishes that case from the case at bar. That was simply a circumstance shedding light on the intention of the testator, whereas in the case at bar the entire context of the will enables us to perceive clearly an intention which we think lawful both- at common law and under the Revised Statutes.

The- other question discussed by the respondent is not presented by the record now before us.

. The judgment must be reversed.

Woodward and Jenks, JJ., concurred; Hirschberg, P. J., and Rich, J., concurred in result.

Judgment reversed and new trial granted, costs to abide the final award of costs.