Chadwick v. Wilson , 73 Hun 485 ( 1893 )

HARDIN, P. J.

Upon the construction to be given to the seventh clause of the will hinges the decision of this case. Searching for the intention of the testator in regard to Melville, reference may be-had to all the provisions of the will. In the latter provision of the will is found the clause that “my children are not to have any control of the above bequests until after the decease of my wife, Ruth Wilson.” This language is suggestive of the fact that the testator-supposed, by the language he had used, his children, including Melville, were to have control of the property specifically devised to them. The language is used after the provision for the wife, which clearly limited the use of his property to her life, and therefore it may lie supposed that the later words, implying that the children were *to have control of her property given to them after her death, significantly indicate the intention as well as the supposition of the testator that the words as to the devises to the children carried out an intention that each should share in the property left by him. We are also to bear in mind, in searching for the intention of the testator, that a construction is to be preferred which does not disinherit a child, to one that does, and also that a construction that disposes of the whole of the estate of the testator is to be preferred to one which leaves the testator dying intestate as to some of his property. Thomas v. Snyder, 43 Hun, 15; Vernon v. Vernon, 53 N. Y. 361. It seems reasonable to suppose the testator, a layman, in drawing his will, intended that his son Melville should take, hold, and have control after the death of the widow of the Carr lot, and was to enjoy it during his lifetime. Until his death it could not be known who his heirs were; and, under the statute as to express-trusts, no authority is given to receive and hold property for indefinite, unascertained beneficiaries, nor is such a trust one authorized by statute. The words of the devise are clear and definite in expressing an intent to give the Carr lot to Melville, as they appear in the early part of the clause under construction; and an attempt to overturn or cut down such an intent on the part of the testator ought not to be allowed, in the absence of words clearly and decisively giving the whole estate to another. Roseboom v. Roseboom, 81 N. Y. 359; Campbell v. Beaumont, 91 N. Y. 464. In the early part of the clause the declaration is made by the testator that he knows nothing of the whereabouts of his -son Melville, and that whether he is dead or alive he knows not, and then there is the-statement that he has “given him much more than any of the others of my children.” These words are suggestive of, and an explanation why, less is given to Melville than to some of the other, children; and they also give rise to an implication, in the connection with which they were used, that it was the intent of the testator to make a moderate provision for his son Melville, and in carrying out that intent he uses the words, “I give and bequeath to him the twelve acres known as the ‘Carr Lot,’ or its equivalent, provided I sell my farm, in trust for his heirs.” It must be borne in mind that the testator was uninformed of whether Melville had children, and that the language used was to cover the contingency, providing that, in •case he had children, they should be permitted to share in the testator’s estate. He had used words in the primary bequest sufficient to carry an absolute estate to Melville, although not accompanied with any words of succession. Tyson v. Blake, 22 N. Y. 562; 1 Rev. St. p. 748, § 1. The' subsequent provision found in the words “in trust for his heirs,” under the circumstances, may well be interpreted as referring to Melville’s lineal descendants only. Bundy v. Bundy, 38 N. Y. 421. And it does not seem unreasonable to infer from the language used and from the circumstances disclosed, which are to be considered in giving interpretation to the language found in the will, that the intention of the testator was to devise to Melville a life estate in the Carr lot, with a “subsequent limitation, to take effect immediately upon the determination of such first •estate,” which would confer upon his children the remainder. To give effect to the primary language used, and to construe it as carrying a fee to Melville, would render inoperative the subsequent words, apparently used by the testator for the purpose of providing for the children of Melville, in the event that he had any; and it is therefore deemed reasonable construction of the whole language used to limit the primary language so that the will operated to effectuate the intent of the testator by carrying to Melville a life estate, with the remainder over to his children. Wager v. Wager, 96 N. Y. 164; Graham v. Trust Co., 46 Hun, 266; Van Horne v. Campbell, 100 N. Y. 299, 3 N. E. 316, 771. To dispose of the question before us, it is only necessary to hold and decide that Melville, by virtue •of the terms of the will, acquired a life estate in the Carr lot, and that his conveyance to the plaintiff operated to vest in the plaintiff the right of possession of the premises. Our conclusion is that the trial court fell into an error in holding “that plaintiff acquired no title to the twelve acres of land in question which entitles him to maintain this action.” We think a new trial should be ordered. ■Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.