Cromwell v. Kirk

1 Dem. Sur. 383

• Court: New York Surrogate's Court
• Decided: June 15, 1883
• Status: Published

Opinion

The Surrogate.

I think nothing can be plainer than the intention of the testator, Perry, to give the residue of his estate to his adopted daughter,- Mrs. Richardson, and then to her child or children, if she died leaving any. She did leave two surviving her. It was only in the event of her leaving none,- that the, executory devise to her husband was to take effect. The Supreme Court, in Hatfield v. Sneden (42 Barb., 615), held that, where the devise and bequest was to a daughter absolutely, and was subsequently qualified by a provision to the effect that, if she had no children, or none living at her decease (which she had not), the real estate was devised to Hatfield, the daughter took a life estate only, with remainder to her issue, if any, as purchasers. The Court of Appeals (54 N. Y., 280) reversed this decision, holding that the fee was devised to the daughter. Here the estate is given to Mrs. Richardson and her child or children. It is limited to “child or children,” and is not given to her “ heirs and assigns,” and the children take as purchasers. It was only, as above remarked, in the event that she left no child, that the executory devise to Mr. Richardson was to take effect. Here the estate of Mrs. Richardson was not one of inheritance. It does not appear that she was, in any way, of the blood of Mr. Perry, and her interest was, at least, determinable and determined by a limitation, which not only deprived her husband of curtesy, but also deprived him of any share as distributee, because her interest was for life only. Had the clause read “to her and her child or children, or her assigns,” the estate created in the wife, as to the real property, would have been a fee simple absolute, as the word “assigns ” clearly imports such fee, and she would also have had the absolute ownership of the personal property; but conceiving the plain intention of the testator to have been as indicated, and knowing of no rule of law applicable to the defeat of such intention, I must hold that the estate of George W. Richardson is liable to account to these wards, for property derived under the will of Mr. Perry.

The case of Clarke v. Leupp (88 N. Y., 228), and the cases therein considered, are not in point. The wills there criticised, and construed, contained what are termed precatory words following the bequest. Here, there is no direction, suggestion, advice, or request made, as to how Mrs. Richards on should dispose of the property given to her. It is simply given to her for life, and then to her children, and, in case she left no child, then to her husband.

The accounting will proceed upon the basis above indicated.