Stehlin v. Stehlin , 67 Hun 110 ( 1893 )

BARNARD, P. J.

Joseph Stehlin, a resident of Westchester county, died in September, 1890, leaving a last will and testament, of which this is a copy:

“In the Name of God, Amen. I, Joseph Stehlin, of New Rochelle', Westchester county, being of sound mind and memory, and knowing the uncertainty of this life, do make, publish, and declare this to be my last will and testament as follows, viz.: First. After all my just and lawful debts are paid, I give and bequeath unto my beloved wife all the real and personal property I may die seised and possessed of, nevertheless until my youngest child may become the age of majority. Second. I hereby direct that my executors hereinafter mentioned shall, at the time when any of my child or children shall marry, to give such child or children the sum of five thousand dollars, and I direct that when, in the diecretion of my executors hereinafter named, they deemed it is necessary, they shall give to any such child or children the sum of five thousand dollars; but when the estate shall be divided the sum that any such child or children may have received shall be deducted, and the balance or residue shall be divided equally, share and share alike, among my said children, except one third of the entire estate shall be given to my wife as her right of dower. Third. Should any of my said child or children marry and leave issue, then such interest that such child or children may be entitled to shall be divided among such issue, share and share alike. Fourth. But, in case my wife shall remarry, I direct that my executors hereinafter named shall give unto my wife as her interest, and for the support of my children, the sum of eighteen hundred dollars a year, and the possession of the premises she now occupies, rent free. Fifth. I direct that all the paintings and engravings that are now mine shall be, after my death, put up at private or public sale, at any time within five years from the time of my death, and when my executors who are hereinafter named shall be so advised by some expert. Sixth. I hereby appoint my beloved wife, Caroline Stehlin, executrix of this, my last will and testament, and John Sutter and Charles V. Stehlin to be the executors of this, my last will and testament, giving and granting unto my said executors full power to sell and convey any and all my real estate or personal property, and to execute all necessary papers and conveyances, revoking all former wills by me made. In witness whereof, I have hereunto subscribed my name the 21st day of July, A. D. 1890. Joseph Stehlin. ”

The deceased left a widow and six children, who were, at the time of his death, and still are, minors. A very considerable portion of his property was and is an equal undivided one-half share of land held by him and his brother, Charles V. Stehlin, as tenants in common. Charles V. Stehlin is one of the executors of the will. The entire estate is stated to be nearly §100,000. The question presented is, what is the true construction of the will? The bequest in the first clause, standing alone, is good.. The suspension of the power of alienation to a period of time described as “until my youngest child may become the age of majority” is only a suspension during the minority of the youngest child, Georgina Stehlin, who was seven months old at testator’s death'. Roe v. Vingut, 117 N. Y. 204, 22 N. E. Rep. 933. This first clause is not, however, absolute.' By the second clause each of the children were entitled to $5,000 on their marriage, and this when they married during the minority of this infant child, Georgina. The testator meant to give something by the second section, and it is not reasonable to hold that he intended to compel his children to wait for the $5,000 until after so long a period expired, especially as his oldest daughter was 17 years old at his death. In ease the youngest child lived to his majority, she would get nothing, if she married, until she was 38 years old. By the second clause the widow is entitled to one third of the estate, real and personal, as her right of dower, but she is entitled to it absolutely if she remains unmarried. By the fourth clause a change is made in case she remarry, and this, to me, is the most uncertain of all the parts of the will. If she remarry, “her interest and for the support of my children” is cut down to $1,800 yearly, and the use of the family residence, rent free. Is this to be a possession for life in lieu of dower and extending beyond the period when the youngest child became of age, or is it only intended to operate in case the wife marry again during the existence of such minority, and which is to end when the minority ceases? The most reasonable construction is that this clause was only designed to provide for a remarriage while the period mentioned in the first clause was running, during the minority of the child. At the end of the minority she took absolutely the one third of the-estate, and there is nothing in this fourth clause which takes that away. At the end of the minority the estate will be wholly divided, one third to the widow, and the other two thirds among the children equally. If the clause was designed to cut down the widow’s right under the second clause, some provision would be made to reserve the $1,800 a year until the widow died, so as to be on hand in case she married after the minority ceased. The will, therefore, gave the use of the entire estate to the widow during the .minority of the youngest child, subject to a right in each child upon his or her marriage to get $5,000 advancement, and, in case the widow marries during the minority of this youngest child, she is to have $1,800 a year for herself and children's support, with the use of the house. At the end of the minority the estate is wholly free. There seems to he no good reason why the executor who owns one equal half of the real estate is disqualified from joining in a deed with the other executors, if the two hold in common ór in severalty the one half of the deceased therein. He could certainly be appointed an attorney or agent for that purpose in testator’s life, and he certainly can give the same power by will. The decree should be modified accordingly, with costs to appellant out of the estate.