Thomas v. Snyder , 6 N.Y. St. Rep. 592 ( 1887 )

Hardin, P. J.:

From the general tenor and scope of the testator’s will it is inferable that he did not intend to die intestate as to any portion of his estate. After enumerations of it in detail as to real estate, and partially so as to the personal estate, he adds a clause, lastly, to the effect that “ all the rest, residue and remainder of my personal estate, goods and chattels of what nature or kind soever to my said wife, Electa T. Thomas.”

A construction which does not leave the testator intestate as to any portion of his estate is preferable and more reasonable of the will in question, than a construction which would leave him clying intestate as to two of the several farms of which he was the owner at the time of making and publishing his will, as well as at the time of his death. “ The law prefers a construction of a will which will prevent partial intestacy to one which will permit it. (Vernon v. Vernon, 53 N. Y., 361.)

While it was within the power of the testator owning thirteen farms to so dispose of eleven as to satisfy his intention, and to leave the other two undisposed of, except as to the use thereof during the life of his widow, it does not seem reasonable to impute such an intention to a testator upon doubtful and equivocal language. The testator limited the gift and devise to his wife “ during her natural life.” The use and devise are clearly unlike that considered in Campbell v. Beaumont (91 N. Y., 464), which were absolute, and the widow took the whole estate with power of disposition. Following the limitation to and “ during the widow’s natural life,” which confessedly applies to the real and personal property given to her, and the words “ and the right to dispose of the same by will, except the bank stock,” apparently the intent in the use of the latter words was to make them coextensive with the prior words used to give her the use of the property of both classes “ during her natural life.” Besides the exception of the bank stock and of the before-named personal property, it is suggestive of an intent to include, in “the right to dispose,” the two classes of property entirely, save that portion thereof known as the bank stock. The original will, handed up upon the argument, gives the language continuously without any use of punctuation or capitals, to indicate an intent to separate the personal from the real in the application of the words “and the right to dispose of the same by will.” (Areson v. Areson, 3 Den., 458 ; Van Allen v. Mooers, 5 Barb., 110.) It was competent for the widow to dispose of the property by will, and, having done so, the property passed under her will to the defendants. (Cutting v. Cutting, 86 N. Y., 540; Hutton v. Benlcard, 92 N. Y., 295.) It is found that the widow executed a will which, with a codicil, was probated, and that it gave the property in question to the defendants. The general language of the will was adequate ’ as an execution of the power conferred upon her to dispose of the property in question by will. (Mott v. Ackerman, 92 N. Y., 539; Hutton v. Benkard, supra.) It follows that the plaintiffs had no title, interest or estate in the lands in question, and that their attempt to partition the same was properly defeated at the trial.

The judgment should be affirmed, with costs.

Boardman and Follett, J. J., concurred.

, Judgment affirmed, with costs.