Viele v. Keeler

13 N.Y.S. 196, 35 N.Y. St. Rep. 904, 59 Hun 617, 1891 N.Y. Misc. LEXIS 1025

• Court: New York Supreme Court
• Decided: February 4, 1891
• Status: Published

Opinion

Landon, J.

The will of Charles D. Townsend gave to his daughter, Mrs. Viele, for her life the possession and enjoyment of the share of his estate allotted to her, but bestowed the legal title thereto upon his executors, in trust to support Mrs. Viele’s possession and enjoyment for life. The codicil to the will gave to Mrs. Viele the title for her life of the same share. We pass this •life-estate to consider the important question whether Mrs. Viele, under the will, became vested of a fee in the same share, or whether it passed upon her death according to the provisions of the codicil. The will declares that, upon the happening of certain events, the share of which it gives Mrs. Viele the use for life shall vest in her in fee. Subject to this contingency, which would of course merge the remainder in the fee, the will disposed of the remainder after Mrs. Viele’s life-estate in her share. The codicil makes a different disposition of the remainder. It contains no provision respecting the contingency whereby Mrs. Viele’s life-estate might become a fee. Thus the will makes, in any event, full and ultimate disposition of the share allotted to Mrs. Viele. And the codicil does no less,—it bestows the share for her life and the remainder afterwards. The disposition of the share in question made by the codicil is the latest expression of the testator’s will. The disposition is complete, and therefore prevails over any different disposition contemplated by the will. This view of the case answers every opposing construction suggested by the plaintiff. It follows that both questions proposed in the case submitted must be answered in the negative, and that judgment must be directed for the defendant, with costs.