| N.Y. App. Div. | Jan 24, 1908
This is an action in ejectment. The appeal is from a judgment • dismissing the complaint entered on the decision of the Trial Term. It involves the construction of the following clause of the will of Albert .Emmaus, who died December 4, 1858, viz.:
The plaintiffs claim under said Margaret Van Dyke, the defendants under Harry Fleming, the son of said Sarah Fleming. Margaret Van Dyke died January 13,1875, intestate and without issue. The premises in question are salt meadow lands, and were a part of and contiguous to farm lands owned and occupied in his lifetime by said Albert Emmans. In 1876 the entire premises were partitioned among the nephews and nieces of said Albert Emmans, living at the time of the decease of the said Margaret Van Dyke, each tenant in common being allotted a portion of the upland and a portion of the salt meadow. The grass has been cut on said meadow each year since 1875, and rent therefor paid to the Fleming family. Said Margaret Van Dyke was the illegitimate daughter of said Albert Emmans. She was survived by her mother, Buth Van Dyke, and the plaintiffs are the children of one of the mother’s heirs, and as such claim to own one-twenty-eiglith part of the premises in question. '
The appellants contend that upon the death of Albert Emmans, • an absolute unconditional fee vested in Margaret Van Dyke by virtue of the provisions of his will quoted supra. They rely upon two well-settled rules of construction, i. e. (a).That an estate
Rules of construction' are intended to aid in determining the intention of the testator, not to defeat such intention when clearly manifested. Effect should be given, if possible, to all the language used, the qualifying words as well as the words of devise; qualifying words do not create repugnance, but are to be harmonized with the words which they qualify, and if when thus harmonized the intention is manifest, there should be' no difficulty in giving it effect. The qualifying words of the clause under consideration, if they are such, are as clear and decisive as the words of devise, hence the first rule quoted supra does not apply, and the question remains whether, under the second rule quoted supra, those words are words of limitation or of substitutionary devise. It may be conceded that the contingency referred to, i. e., the death of Margaret, though coupled with another contingency, i. e., death “ without lawful, issue her surviving,” if there were nothing else in the will to' disclose the intention of the testator, would refer to a death in the lifetime of the testator, because so the cases uniformly hold. But I think that the testator used other language clearly indicating that the contingency he had in mind was the death of Margaret at any time, for he said, “ then, and in that case, I give, devise and bequeath all said rest,, residue and remainder of my estate herein-above given to said Margaret unto my nephews * '* * , and to such children of my sister Maria Napier as may le living at the time■ of the decease of my said daughter Margaret.” Thus, I think, he clearly evidenced an intention to provide not for substitutionary devises but for conditional limitations to take effect upon the death of Margaret without issue her surviving. The devisees named are to take, not upon the death of the testator, but upon the death of Margaret. I think, when the entire clause is read, the testator’s intention is not in doubt, and that he intended Margaret should have a fee vesting upon his death, subject to being divested upon her death without lawful issue her surviving. While no case precisely like this lias been called to onr attention, exceptions to the
As the plaintiffs cannot maintain their action without proving' title, it is unnecessary to consider the' other, points urged, by them.
The judgment should be affirmed. '
■ Woodward, Jenks, Gaynor and Rich, JJ., concurred.' . - '
Judgment affirmed, with costs: