Clay v. Wood , 98 N.Y. Sup. Ct. 398 ( 1895 )

VAN BRUNT, P. J.

I cannot concur in the conclusion arrived at by Mr. Justice PARKER in this case. It seems clear to me that it was not the intention of the testator to limit the estate which he had given, devised, and bequeathed to his wife in such absolute and'unmistakable terms by anything that was subsequently contained in the will. It seems to me idle to suppose that the testator in one breath should give to his wife all the rest, residue, and remainder of his estate, and to her heirs, executors, administrators, and assigns forever, and then, in the very next sentence, say that she should have only a life estate therein. The words do not require any such inconsistent action upon the part of the testator, and, in my judgment, such a limitation upon the estate given to the wife would be contrary to his intentions. In the very next sentence after having given to his wife all the residue of his estate as absolutely as it was possible for language to do so, using words of succession, which were not at all necessary, giving it to her heirs, executors,' administrators, and assigns forever, he says: “And it is my desire and request that my said wife do sustain, provide for, and educate Lucretia M. Wood, the daughter of my said adopted daughter, Josephine M. Wood. And it is my further desire and request that my wife do make the said Lucretia M. Wood, Josephine M. Wood, and my nephews and nieces, the children of my brothers, Caleb S. Clay and George Clay, joint heirs, after her death, in the said estate which by this will I have bequeathed to my said wife;” thus, in the very last words of the clause, declaring that he had given the estate to his wife. How can such language be construed to be a limitation upon an absolute gift? It is a request. He wished her to do it, but he did not intend to impose any obligation upon her so to do, unless she saw fit to comply with his desire and request. He did not intend to give these nephews' and nieces a vested interest in this estate. He put the title in his wife, and then he says: “When you get through with it, I would like to have you give it to the nephews and nieces.” The testator did not give it to them. He did not intend to give it to them. He only made the request that his wife should do so, evidently intending to give her the option, if she saw fit, not to make such disposition of her estate, because it was hers,—he said it -was to be hers after his death; and it is the wife who is to give it,—a thing which the testator never attempted to do. In re Hamilton [1895] 2 Ch. 370.

The judgment should be affirmed, with costs.

FOLLETT, J., concurs.