7 Barb. 221 | N.Y. Sup. Ct. | 1849
The first question to be examined in this case is as to the true construction of the will of Hendrick Vanderwerker, with respect to the devise to Abraham. The testator, by his will, devised all his estate, real and personal, to his wife during her widowhood, charged with the payment of his debts and the support of his minor children, and after her death he devised specific portions of his real estate, described by metes- and bounds, to each of his sons, Rolf, Peter, Lawrence, Adam and Cornelius, and to their heirs and assigns forever. He devised his grist mill to his sons George and Henry, charged with the payment of $250 to each of his daughters Getty, Anna and Maria, in one year after the death of his wife; and he directed that if any debts should remain, after the death of his wife, justly chargeable against the estate thereby devised, they should be paid, one half by George and Henry, and the other half by the other sons before named. He also gave to Henry one acre of land adjoining to the west of his lease lot, with an equal share of the wood lot on the north side of the road, and one acre of the island. Then follows the devise to Abraham, which is in these words—“And I do hereby give and bequeath unto my unfortunate son Abraham, who seems to have such an impediment that I think he will never be able to get his living,' a certain part of the farm whereon I now live, [describing it by
There are no words of inheritance in the devise to Abraham, as there are in the devises to the other heirs j and as the will took effect in 1816, it is contended that only a life estate passed to Abraham; and such is the general rule of law. But the plaintiff insists that the introductory clause of the will affords evidence that the testator intended that a fee should pass to Abraham. The language is, “ as touching such worldly estate as it hath pleased God to bless me with in this life, I do give and dispose of the same in the following manner and form.” It is fairly deducible from the decision of the court of errors in Barheydt v. Barheydt, (20 Wend. 576,) that the introductory clause of a will evincing the intent of the testator to dispose of all his worldly estate, has not the effect to enlarge the estate devised, unless the words of disposition in the clause of devise are connected* in terms or sense, with the introductory- clause,
It is contended in the next place, that Abraham is personally charged with a proportionate share of the support of John, and that the devise for life is thus, by implication, enlarged into a fee. I do not so understand the devise to Abraham. The devise to him was intended for his support, and the executors were made his trustees. There is no charge in the will either upon him, personally, or upon the estate devised to him. The whole will must be taken together. It can hardly be supposed that the testator intended that John should reside with his son Abraham, who was then an infant and an idiot, and for whose support he had just made a provision. The will is satisfied by referring that clause to the other brothers of John, to whom the other portions of the testator’s estate were given in fee.
But again; a charge, to carry a fee, by implication, when the devise is without words of limitation, must be upon the person of the devisee, in respect to the lands devised. This was so held in Olmsted v. Harvey, (1 Barb. S. C. Rep. 102,) and affirmed on appeal. (1 Comst. 483.) This doctrine is well established. (See Spraker v. Van Alstyne, 18 Wend. 205 ; Fox v. Phelps, 17 Id. 393; Jackson v. Ball, 10 John. 143; Barheydt v. Barheydt, 20 Wend. 580.) There is no charge, in this case, of the support of John upon the person of Abraham. There is therefore no ground for enlarging the life estate into a fee. Abraham took merely an estate for life in the several premises devised to him; and as the remainder was undisposed of by the will, it descended to the heirs of the testator, subject to the life estate of Abraham. None but the heirs of the testator Hendrick, and those who have succeeded to their rights, were proper parties to the bill.
It is set up on the part of the defendants, and is proved, that Joshua Bloore, in his lifetime, acquired the titles of Henry H
The above are all the persons who are necessary parties to the bill. The grantors of Bloore are not proper parties. No relief is prayed for or against them in that character, and having parted with their title they have no concern in the partition. It is quite obvious that the bill, in its present shape, can not be sustained. (Burhans v. Burhans, 2 Barb. Ch. Rep. 407.)
The remaining question is whether the bill should be dismissed, without prejudice, or should be amended upon terms. When the objection to the bill, for defect of parties, is taken in the answer, the complainant, if the objection be true, should amend and bring the requisite parties before the court, and dismiss his bill as to those who are improperly made parties. If