Curtis v. Waldron

81 A.D. 351, 80 N.Y.S. 843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1903
• Status: Published

Opinion

Chase, J.:

In the consideration of this will it is unnecessary to state the many general rules applicable to the construction of wills which have been so often repeated with the citation of sustaining authorities in the opinions- of the courts. It is conceded that the law favors the vesting of estates, and that a gift in one part of a will cannot be subsequently taken away or cut down except by language as plain and certain as that by which the gift was provided. In the construction of a will the intention of the testator as gathered from the whole will must control when such intention is not in conflict with public policy, the settled rules of law, or some prohibitive statute. (Putnam v. Lincoln Safe Deposit Company, 66 App. Div. 137.) Other than a money legacy to Cornelius ET. Yisscher not subject to the life estate of the widow the gifts in the will to the testator’s nephews and nieces consist of the gift to Cornelius ET. Yisscher as stated in said 5th paragraph of the will, a similar gift of other real estate to the remaining nephew, a similar gift of other real, estate to the two nieces and the gift of the residue of the estate to the' said four nephews and nieces as provided in the 12th paragraph of the will.

The 13th paragraph of the will does not in terms confine its provisions to the shares that the nephews and nieces would take or be entitled to under the residuary provision of the will. In referring to the nephews and nieces the word “ share ” is first used in a clause as follows: “ Such child or children shall take and have the share which the parent would have taken or been entitled to hereby if living.” The word “ hereby ” is not confined in its meaning to the residuary clause of the will, but clearly refers to the whole will. The words “ share or shares,” subsequently used in this paragraph, are subject to a like construction with the word “ share ” previously used therein.

We are of the opinion that the 13th paragraph of the will should be read the same as it would be read if the word “ hereby ” was stricken out and the words “by this will” were inserted in its place, and that its provisions relate to and include the gift to Cornelius Ni Yisscher mentioned in the 5th paragraph of the will.

Ann Yisscher having outlived her husband, the testator, the time when the nephews and nieces were severally to become fully possessed or entitled to the possession of the bequests and devises to them was at the death of said widow,

The remarriage of the widow would have entitled the nephews and nieces to possession of the devises to them before her death, but such right to the possession of the real estate would not have arisen by the express terms of the will but by reason of the fact that the title to the real estate vested in the devisees subject.only to the estate for the life or widowhood of Ann Yisscher. Every reference in the will to the time when the legatees and devisees would have full possession and enjoyment of the bequests and devises to them refers to the death of the testator and his wife, and the survivor of them. The language of the will throughout clearly shows that the death of the survivor of the testator and his wife was a point of time constantly before the mind of the testator in the preparation of his will. With this in mind he uses the language in the beginning of ■ the 13th paragraph as follows: “ If any or' either of my said nephews or nieces shall die before my said wife and myself,” and in so doing, it seems to us, he referred as he had before repeatedly referred in his will to the death of himself and wife and the survivor of them.

A harmonious construction of the whole will requires that said language in the 13th paragraph of the will shall be construed as an equivalent statement to that so. frequently used in other parts of the will where it clearly refers to the death of the testator and his wife,- and the survivor of them.

We do not agree with the appellant that the strict grammatical construction of the language of paragraph 13 requires any different construction. The plain language refers to a death “before my said wife and myself,” which means the death of them and the survivor of them.

The title of Cornelius N. Yisscher to the lands in question was always subject to be divested by his death prior to the death of Ann Yisscher. She having survived him, the complaint herein was properly dismissed. This conclusion makes it unnecessary for us to consider whether under the will of Cornelius N. Yisscher the plaintiff was vested with such an interest in his real estate as was necessary to enable her to maintain partition.

The judgment should be affirmed, with costs.

All concurred; Parker, P. J., in result.

Judgment unanimously affirmed, with costs.