17 Barb. 552 | N.Y. Sup. Ct. | 1864
The plaintiffs ask for the partition of certain lands of the late Henry Waring, situate in the -fourth ward of the city of Brooklyn, between such of the parties to this suit as are the heirs at law of the late proprietor. Five of the defendants answer that the rights of the heirs at law of the deceased to the lands described in the complaint, depend upon the construction and effect of his will and codicil, and the defendants Henry P. Waring and Stephen Waring, named as trustees in the will, claim such rights (if any) as those documents confer upon them. The will is dated on the 25th of January, 1836. The second clause is in the following words: “ I give and bequeath to my beloved wife all and singular my house-?
There cannot be much, if any, doubt as to the estate given to Mrs; Waring, and which she would have taken had she survived the testator. The will gave her a particular estate in the lands for life. The codicil conferred upon her an absolute power of disposition, not accompanied by any trust. She was authorized and empowered to sell and convey “ any and every part and parcel” of the land and buildings. The power was not restricted by any direction as to the application of the proceeds. She might dispose of them as she should find necessary and proper. Had the word “necessary” stood alone, that might have limited the application to the necessaries of life, and possibly have restricted the power accordingly. But the word “ proper” is added, and tó give it any meaning the conjunction connecting the two must be changed from the copulative to the disjunctive. The pow'er fo dispose of the proceeds of property as the devisee might “ find proper,” without any specification of the objects, must necessarily be absolute. It is clear that the power is unaccompanied by any trust; consequently the estate given to Mrs. Waring in the will was, under our statute, an absolute fee. (1 R. S. 732, §§ 81, 83.) The counsel for the defendants contended that, inasmuch as the power never became operative, by reason of the premature death of the devisee, the conversion of the life estate into a fee was not effected. It is true that in the end she took no estate whatever. But in this case the question is, what estate was specified in the will; for that, and not what should be actually and eventually acquired* was to be “ set apart” from what was given in the residuary devise. How the estate given to Mrs. Waring in the will is precisely what the statute declares it to be, an absolute fee. A will does not proprio vigore create any estate. It defines the in
The devise to Mrs. Waring of course lapsed, by her death, in the lifetime of the testator, and it becomes an important question whether the “ estate” devised to her eventually passed under or was affected by the residuary devise. The specified estate was not at all affected by the residuary devise, if, as I have already intimated, it was expressly excluded. A devise can never pass land against the expressed intention of the testator ; nor, as I understand the rule, when a contrary intention is plainly implied. Where a testator devises his land to one^ he does not, ordinarily, intend that it shall go to another^ If a possible failure of the gift is contemplated, an alternative provision is generally adopted. It has therefore been long, and very properly, settled that a lapsed devise does not enure to the benefit of a residuary devisee, and the land of course descends to the heirs at law. The rule is not changed, or at all affected by the provision in our revised statutes, that “ every will which shall be made by a testator in express terms of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.” (2 R. S. 57, § 5.) The revisers stated that their object was to pass subsequently acquired land. Both devises of real estate and bequests of personal property are now assimilated so far that they may include intermediate acquisitions. In this particular they effectuate the intentions of testators, and are therefore reasonable and proper. But I could never discover any substantial reason for the original establishment of the rule, that a residuary bequest should include all other legacies which might fail by the death of the legatees, or from inherent defects. The will undoubtedly becomes effective at the death of the testator, and not before ; but then it declares his intentions, and they
It was contended, however, by the defendants’ counsel, that as
S B. Strong, Justice.]
I assume, in this case, that the will and codicil must be considered as One instrument, and that the word “ estate,” as applicable to what had been given to the wife, and which is excepted in the residuary devise, has reference as well to what was devised to her in the codicil, as to the gifts to her in the will, and that the provision that the bequests and devises to the wife are to be accepted by her in lieu of her dower, qualified all the uses given to her in both instruments. This is in accordance with the authorities. (1 Jarman’s Powell on Dev. 20, and the cases there cited.)
Upon the whole, T am satisfied that the premises in dispute did not pass under, nor was the title to them affected by, the residuary clause in the will, but that in the event which has happened, they descended to the heirs at law of the testator in fee.
The plaintiffs are entitled to the partition demanded in their complaint. It must be so declared, and it must be referred to Judge Morse to take the usual proofs, and report thereon to this court. Should there be a sale, it would certainly be proper that the defendants, who are named as trustees in the will, should be reimbursed their expenditures on and about the premises, after charging them with what rents or other income they may have received, and that all parties should receive their costs out of the proceeds.