Christie v. Gage , 5 Lans. 139 ( 1871 )

Mullin, P. J.

The will of Andrew Christie went into effect before the Revised Statutes took: effect, and its pro* visions are not governed by those statutes. Before the passage of these statutes the law was conclusively settled that when there was a devisé to a person without naming his heirs, or containing other words of perpetuity, the devisees took a life estate only. (Charter v. Otis, 41 Barb., 525, and cases cited.)

The clause of the will which gives to the testator’s grandson, Andrew, the 100 acres in dispute, standing alone, contains no words of perpetuity, and hence he took a life estate only.

But in this, as in most other cases, the intent of the testator when ascertained must govern, provided the language admits of construction. It is one of the rules of the construction of wills, that every expression in the will shall have effect if possible, unless the intention of the testator would thereby be defeated. (Carter v. Hunt, 40 Barb., 89.)

In the clause which gave an estate for life to the widow in one-tliird part of the testator’s real estate, there is added the following words: “ And which at the time of her decease shall be, and the same is hereby declared to be, for the use and at the disposal of those to whom it is above devised.”

The word “ which ” in the clause recited obviously relates to the one-third of the estate devised to the widow for life. And if so, then the clause in question does not apply to the other two-thirds devised by the previous clauses of the will to his children. The object of the clause was to make it certain that at the widow’s death the land taken and occupied by the widow should belong to those to whom it would have belonged had the widow not received any portion of it.

If that is the construction, it does not enlarge the estate of Andrew, except in so far as it secures him for the term of his life of so much of the 100 acres devised to him as the widow should take from him.

If the word “ which ” in the clause under consideration referred to the landed estate previously mentioned in the same clause, it might be construed as evincing an intention, that all the devisees should, on the death of the mother, take the lands devised to them in fee. But such a construction cannot be given to the clause without violating the plainest rules of grammar, and, I may add, the manifest intention of the testator.

This clause being laid out of view, there is nothing in the will that justifies the assumption that it was the intention of the testator to give Andrew anything beyond a life estate in the 100 acres. On the contrary, the testator seems to have understood that the omission of words of perpetuity reduced the estate devised to an estate for life, as in every devise contained in the will, except in that to Andrew and to the widow, words of perpetuity are used. This omission is most significant.

It is unnecessary to say that, although by the codicil the estate devised to Andrew is reduced from a life estate, in so much of the 100 acres as were not taken by the widow, to an estate for the residue of his life, after the death of the widow, yet there is nothing in the codicil manifesting an intention to enlarge the estate to a fee.

New trial granted, costs to abide the event.