Chase, J.
This action is brought to recover the amount of the two claims presented by the plaintiff to the defendant and which were rejected by him. The complaint is divided into two causes of action, one for the recovery of said $3,155.19 and interest, and the other for the recovery of said $1,500 and interest. Even if we admit that the plaintiff is right in her contentions in regard to the meaning and effect of the will of Anna C. Erickson, she cannot recover either of said amounts except upon a finding that such amounts or some part thereof, or of one of them, were derived by Lars Erickson under her will and remained undisposed of by him at his decease.
(Seaward
v.
Davis,
198 N. Y. 415.)
The Special Term found in substance that none of the $3,155.19 remained undisposed of by Lars Erickson immediately before his decease and the complaint as to the first causé of action was thereupon dismissed. The Appellate Division unanimously affirmed the judgment dismissing such first cause of action. A unanimous affirmance by the Appellate Division imports that there is evidence supporting or tending to sustain the findings of fact made by the trial court upon which such judgment was entered by it.
(Tidd
v.
Skinner,
225 N. Y. 422;
Poel
v.
Brunswick-Balke-Collender Co.,
216 N. Y. 310;
Fox
v.
Proctor,
217 N. Y. 711.)
This court cannot review the question of fact upon the determination of which the judgment dismissing the first
cause of action is based. The judgment dismissing the complaint so far as it. relates to the claim for $1,500 and interest is before us on the merits.
The action is not in terms for the construction of the will of Anna C. Erickson although a determination of the plaintiff’s claims so far as we are permitted to consider them requires us to determine the intention of the testatrix as expressed in the will. The plaintiff’s contentions are wholly based upon the provisions of the will, and the fact that Lars Erickson' accepted the devise and bequest to him under such will. No prior or other contract between Arma C. Erickson and her husband is pleaded or claimed and no evidence was presented at the trial in any way relating thereto.
In considering the will it is unnecessary to discuss the power and authority of the testatrix if she had so desired to give to her husband a life estate in her residuary property with authority to use the principal thereof in his lifetime, and to her sister all or any part of such residuary property remaining unused at his death.
. A gift to one followed by a gift to another of such part thereof as may remain at the decease of the first taker, can be enforced when the intention of the giver is clear and definite to limit the gift to the first taker to a life estate with power to dispose of the principal or any part thereof during his lifetime and to give to another such part of the principal as is not disposed of in the lifetime of the first taker.
(Seaward
v.
Davis, supra.)
The gift over after a gift that is apparently absolute is sustained because it is ascertained that it was not the giver’s intention to make an absolute gift, but one qualified and limited by the subsequent or other provisions of the will or instrument creating the gifts.
(Leggett
v.
Firth,
132 N. Y. 7.) The common-law rule governing repugnant gifts has been changed by statute. (Real Property Law [Cons. Laws, ch. 50], sec. 57; Personal Property Law [Cons. Laws, ch. 41], sec. 11.)
The first part of the fourth paragraph of the will under consideration which we have quoted provides:
“
I give and bequeath to my beloved husband Lars Erickson, all of the rest and remainder of my estate both real and personal to have and to hold the same to him his heirs and assigns forever.” It constitutes a clear, certain, unqualified and absolute gift to her husband. If she had not added a further provision in the will no question could possibly have arisen as to her meaning and intention, or as to his absolute title to such rest and residue of her estate.
It cannot be disputed that at the time she made her will it was her wish and desire that her husband should give what remained of such rest and residue of her property undisposed of at the time of his death to her sister. Did she intend to do more than express such wish and desire? If she had intended to qualify and limit the gift to her husband to a life estate with the right to use so much of the principal thereof as he should choose during his life, she should have provided in the will for such limitation in as plain and clear terms as she had used in giving him such rest and residue. Such intention could have been clearly and definitely stated by giving the rest and residue of her property to her sister subject to such prior gift to her husband. She did not leave such rest and residue in trust nor did she by clear, certain or other terms, qualify the absolute gift to him. The statement by her in the latter part of said fourth paragraph of her will emphasizes and makes certain that the gift to her husband is absolute because she says that Lars Erickson “
shall give and turn over to my sister Amanda Tillman
” what shall remain by him undisposed of. The testatrix trusted her husband to respect her wish and desire in the disposition of any part of the rest and residue of her property not used by him in his lifetime. The principal contention against the construction of the will as claimed by the defendant rests in the use by the testatrix of the word
“
understanding ” which it is said
imports a contract already made or arising from an acceptance by her husband of the bequest and devise.
The word
“
understanding ” is one -of common use but of varying meaning.
(Barkhausen
v. Chicago,
M. & St. P. R. Co.,
142 Wis. 292.) In
Camp
v.
Waring
(25 Conn. 520) the court say: "The context here shows that the word ' understanding/ always a loose and ambiguous one, unless accompanied with some expression to show that it constituted a meeting of the minds of the parties upon something respecting which they intended to be bound, was used, not to express anything which was the subject of an agreement or contract between the parties, but only that kind of expectation or confidence upon which parties are frequently willing to rely without requiring any binding stipulation.”
It is at least not clear that the testatrix by the use of the word " understanding ” intended that her husband could not accept the gift to him without thereby becoming obligated as by contract to give any part of the rest and residue of her property remaining undisposed of by him at his decease to her sister. It is assumed by the parties that no contract was ever made upon which the will is based, and that the obligation of Lars Erickson to the testatrix’s sister, arises if at all, by the acceptance of the bequest and devise.
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Chase, J.
This action is brought to recover the amount of the two claims presented by the plaintiff to the defendant and which were rejected by him. The complaint is divided into two causes of action, one for the recovery of said $3,155.19 and interest, and the other for the recovery of said $1,500 and interest. Even if we admit that the plaintiff is right in her contentions in regard to the meaning and effect of the will of Anna C. Erickson, she cannot recover either of said amounts except upon a finding that such amounts or some part thereof, or of one of them, were derived by Lars Erickson under her will and remained undisposed of by him at his decease.
(Seaward
v.
Davis,
198 N. Y. 415.)
The Special Term found in substance that none of the $3,155.19 remained undisposed of by Lars Erickson immediately before his decease and the complaint as to the first causé of action was thereupon dismissed. The Appellate Division unanimously affirmed the judgment dismissing such first cause of action. A unanimous affirmance by the Appellate Division imports that there is evidence supporting or tending to sustain the findings of fact made by the trial court upon which such judgment was entered by it.
(Tidd
v.
Skinner,
225 N. Y. 422;
Poel
v.
Brunswick-Balke-Collender Co.,
216 N. Y. 310;
Fox
v.
Proctor,
217 N. Y. 711.)
This court cannot review the question of fact upon the determination of which the judgment dismissing the first
cause of action is based. The judgment dismissing the complaint so far as it. relates to the claim for $1,500 and interest is before us on the merits.
The action is not in terms for the construction of the will of Anna C. Erickson although a determination of the plaintiff’s claims so far as we are permitted to consider them requires us to determine the intention of the testatrix as expressed in the will. The plaintiff’s contentions are wholly based upon the provisions of the will, and the fact that Lars Erickson' accepted the devise and bequest to him under such will. No prior or other contract between Arma C. Erickson and her husband is pleaded or claimed and no evidence was presented at the trial in any way relating thereto.
In considering the will it is unnecessary to discuss the power and authority of the testatrix if she had so desired to give to her husband a life estate in her residuary property with authority to use the principal thereof in his lifetime, and to her sister all or any part of such residuary property remaining unused at his death.
. A gift to one followed by a gift to another of such part thereof as may remain at the decease of the first taker, can be enforced when the intention of the giver is clear and definite to limit the gift to the first taker to a life estate with power to dispose of the principal or any part thereof during his lifetime and to give to another such part of the principal as is not disposed of in the lifetime of the first taker.
(Seaward
v.
Davis, supra.)
The gift over after a gift that is apparently absolute is sustained because it is ascertained that it was not the giver’s intention to make an absolute gift, but one qualified and limited by the subsequent or other provisions of the will or instrument creating the gifts.
(Leggett
v.
Firth,
132 N. Y. 7.) The common-law rule governing repugnant gifts has been changed by statute. (Real Property Law [Cons. Laws, ch. 50], sec. 57; Personal Property Law [Cons. Laws, ch. 41], sec. 11.)
The first part of the fourth paragraph of the will under consideration which we have quoted provides:
“
I give and bequeath to my beloved husband Lars Erickson, all of the rest and remainder of my estate both real and personal to have and to hold the same to him his heirs and assigns forever.” It constitutes a clear, certain, unqualified and absolute gift to her husband. If she had not added a further provision in the will no question could possibly have arisen as to her meaning and intention, or as to his absolute title to such rest and residue of her estate.
It cannot be disputed that at the time she made her will it was her wish and desire that her husband should give what remained of such rest and residue of her property undisposed of at the time of his death to her sister. Did she intend to do more than express such wish and desire? If she had intended to qualify and limit the gift to her husband to a life estate with the right to use so much of the principal thereof as he should choose during his life, she should have provided in the will for such limitation in as plain and clear terms as she had used in giving him such rest and residue. Such intention could have been clearly and definitely stated by giving the rest and residue of her property to her sister subject to such prior gift to her husband. She did not leave such rest and residue in trust nor did she by clear, certain or other terms, qualify the absolute gift to him. The statement by her in the latter part of said fourth paragraph of her will emphasizes and makes certain that the gift to her husband is absolute because she says that Lars Erickson “
shall give and turn over to my sister Amanda Tillman
” what shall remain by him undisposed of. The testatrix trusted her husband to respect her wish and desire in the disposition of any part of the rest and residue of her property not used by him in his lifetime. The principal contention against the construction of the will as claimed by the defendant rests in the use by the testatrix of the word
“
understanding ” which it is said
imports a contract already made or arising from an acceptance by her husband of the bequest and devise.
The word
“
understanding ” is one -of common use but of varying meaning.
(Barkhausen
v. Chicago,
M. & St. P. R. Co.,
142 Wis. 292.) In
Camp
v.
Waring
(25 Conn. 520) the court say: "The context here shows that the word ' understanding/ always a loose and ambiguous one, unless accompanied with some expression to show that it constituted a meeting of the minds of the parties upon something respecting which they intended to be bound, was used, not to express anything which was the subject of an agreement or contract between the parties, but only that kind of expectation or confidence upon which parties are frequently willing to rely without requiring any binding stipulation.”
It is at least not clear that the testatrix by the use of the word " understanding ” intended that her husband could not accept the gift to him without thereby becoming obligated as by contract to give any part of the rest and residue of her property remaining undisposed of by him at his decease to her sister. It is assumed by the parties that no contract was ever made upon which the will is based, and that the obligation of Lars Erickson to the testatrix’s sister, arises if at all, by the acceptance of the bequest and devise.
While an expectant estate may exist subject to a prior estate with an absolute power of disposition, and although such expectant estate may be defeated in any manner or by any act or means which the party creating such estate in the creation thereof has provided for or authorized (Real Property Law, sec. 57; Personal Property Law, sec. 11),
an absolute estate
is repugnant as a matter of fact to a gift over to a third person. It is because of such repugnance in fact that an apparently absolute estate cannot be cut down or qualified unless the intention is clear and definite.
In
Matter of Ithaca Trust Company
(220 N. Y. 437,441)
this court say:
“
A remainder cannot be limited upon an
absolute
estate in fee. Where a gift is provided by will
and such gift is intended to be absolute,
a gift over is repugnant to such absolute gift and void and the purported gift over must be treated as a mere expression of a wish or desire regarding the distribution of such part of the gift as may remain undisposed of at the death of the donee.”
Where there is an absolute gift of real or personal property, in order to qualify it or cut it down the latter part of the will should show equally clear intention to do so by use of words definite in their meaning and by expressions which must be regarded as imperative.
(Clay
v.
Wood,
153 N. Y. 134;
Matter of Gardner,
140 N. Y. 122;
Roseboom
v.
Roseboom,
81 N. Y. 356;
Post
v.
Moore,
181 N. Y. 15.)
The gift to Lars Erickson in this case was absolute. There is no gift therein to Amanda Tillman. Neither is there such clear and certain statement of intention shown by the will as to make Lars Erickson through the acceptance of the devise and bequest to him obligated as by contract to give any undisposed of part of the rest and residue of Anna C. Erickson’s property to Amanda Tillman, nor to make such contractual obligation a specific charge upon the gift to Lars Erickson.
An agreement entered into between a testatrix and a legatee that is clear and definite in its terms and which constitutes the basis in whole or in part for a legacy will be enforced by' the courts. So in
Seaver
v.
Ransom
(224 N. Y. 233), which was an action • to recover on a contract made by a husband with his wife, it appeared that both were advanced in years and Mrs. Beaman was about to die. Her husband, who was or had been a judge, drew her will according to her instructions. He was named therein as residuary legatee and executor. The plaintiff in the action was a niece, in ill-health, sometimes a member of the Beaman household. The story of the contract is briefly and succinctly told in the opinion as follows:
“
When the will was read to Mrs. Beaman she said that it was not as she wanted it; she wanted to leave the house to, plaintiff. She had no other objection to the will, but her strength was waning and although the judge offered to write another will for her, she said she was afraid she would not hold out long enough to enable her to sign it. So the judge said if she would sign the will he would leave plaintiff enough in his will, to makeup the difference. He avouched the promise by his uplifted hand with all solemnity and his wife then executed the will. When he came to die it was found that his will made no provision for the plaintiff.” (p. 235.) This court held:
“
The equities are with the plaintiff and they may be enforced in this action, whether it be regarded as an action for damages or an action for specific performance to convert the defendants into trustees for plaintiff’s benefit under the agreement.” (p. 241.)
So, also, where there is a clear and definite gift by will which by the terms of the will or by operation of law is clearly and definitely charged upon the real property owned by the testator at his death, a person accepting a gift of such real property thereby obligates himself to pay the charge.
(Brown
v.
Knapp,
79 N. Y. 136;
Dinan
v.
Coneys,
143 N. Y. 544.)
The plaintiff in this case has not shown that a contract was made between Anna C. Erickson and her husband on which the will was based or which contemplated a charge upon th.e gift to him. She has not shown a gift to her by the will of Anna C. Erickson. Upon the facts before us she cannot sustain her complaint.
The judgment should be affirmed, with costs.
Hiscock, Ch. J., Pound, McLaughlin, Crane and Andrews, JJ., concur; Cardozo, J., dissents from judgment of Appellate Division in so far as it dismisses the second cause of action.
Judgment affirmed.