Vannorsdall v. Van Deventer, 51 Barb. 137

Vannorsdall v. Van Deventer

51 Barb. 137 | N.Y. Sup. Ct. | 1867

By the Court, E. Darwin Smith, J.

The construction of the will of Jacob Vannorsdall, deceased, which the plaintiffs in this submission claim, I think, is the true one.The case states that the plaintiffs claim that in and by the said last will and testament, the real estate mentioned in said will belongs to, and is owned in common by, the said parties thereto, and that each of said parties is the owner of, and entitled to, one fourteenth of said real estate so mentioned and described in said will. The claim of the defendants that in and by said last will and testament they are entitled to, and are the sole owners of, said real estate, and that the plaintiffs have no right, title or interest therein, is, I think, unsound and untenable. The intent of the testator was, I think, very clearly, to give to his wife his real estate during her life, and after her decease to give the same in equal portions to the three classes of persons who should be heirs of his brother Abram, of his sister Maria Snyder, and of his brother-in-law William Van Deventer. The word heirs, as used in this will, so far as relates to the heirs of his brother-in-law, Van Deventer, was doubtless used as synonymous with the word children, for the will assumes that he was then living, while in respect to his brother Abram and his sister, Maria Snyder, it speaks of them as deceased. In respect to the heirs of his brother and sister there was no contingency in respect to the persons to'take, and the estate would vest immedi*147ately upon the decease of the testator. Assuming that the testator meant to give the third interest in the estate to the children of his brother-in-law, Van Deventer, there could be no contingency at the time of the death, and the estate would vest in the children of the defendant Van Deventer, then living, immediately. When a will recognizes the ancestor as living and makes a devise to his heirs, eo nomine, this shows that the term is not used in its strict sense,' but as meaning the heirs apparent of the ancestor named. (Heard v. Horton, 1 Denio, 168. Campbell v. Rawdon, 18 N. Y. Map. 418.) To give this will the construction claimed by the defendants and give them the whole estate, would clearly defeat the intent of the testator. In drawing this will, the draftsman obviously meant to classify the devises under the will according to their families. The numbering employed in the will denotes this. First, the will provides for the payment of the debts of the testator. Second, it gives the personal estate to the wife. Third, it gives her the real estate for life. Fourth, it gives and bequeaths to the legal heirs of his brother Abram. Fifth, to-the legal heirs of his sister Maria. Sixth, to the heirs of his brother-in-law, William Van Deventer, all his real estate at the death of his wife Elizabeth, to be divided equally between each of the heirs above named, after the decease of his said wife. The “ heirs ” above named means the heirs named in the divisions numbered 4th, 5th and 6th. The property given is suspended in the two former classes, so that it may be mentioned and described with its incidents only once. Eothing, otherwise, is given to the heirs named in numbers 4 and 5, and those provisions would be entirely inoperative and surplusage. These two classes were named in the will for some purpose,- and we must so construe the will as to give operation and effect to every part of it if possible. The repetition of the words, “I give and bequeath” in the 6th subdivision is simply surplusage or *148repetition, without meaning or necessity, inserted by the draftsman without considering that words sufficient to devise the estate were contained in the 4th division evidently to apply to what should come after it. This was obviously overlooked by the draftsman, as he turned over the sheet in writing the 'will which was exhibited to us on the argument. There can be, we think, no doubt what the real intent of the testator was, in making this will, and that must control, however inartificially the will may be drawn or worded.

[Monroe General Term, December 2, 1867.

J. C. Smith, Welles and E. D. Smith, Justices.

Judgment should be given in conformity with these views, declaring that each of the parties has an equal interest of one fourteenth of the estate.

Judgment accordingly.