Jackson ex dem. Hotchkiss v. Wight , 3 Wend. 109 ( 1829 )

By the Court,

Sutherland, J.

It is not denied that the lessors are bound to provide for the defendant. But it is contended that they are entitled to the possession of the estate, charged with the support of the defendant; and that making provision for her support is not, according to the true construction of the will, a condition upon the performance of which their right of entry depends. The case depends then upon the construction to be given to the will of Jacob Elias.

It was evidently the intention of the testator to make a certain and competent provision for the comfortable support of his wife. He accordingly gives to her the use of his whole real and personal estate during the minority of his children, and expressly directs that the children, before they shall take possession of the estate, shall give satisfactory security for the competent maintenance of their mother. He put her in possession of his whole estate, and he did not intend that she should be deprived of such possession until other provision was made for her. A mere right of action against the lessors, together with a charge upon the estate for a sum equal to the support of the defendant, would leave it in the power of the lessors, temporarily at least, to deprive her of a home and the means of support, if they thought proper to avail themselves of the delay which the law would enable them to interpose against her demand. It appears to me that the testator intended to put the provision for his wife beyond all hazard; he gave her the possession of his whole estate, which he meant she should retain until other provision was made for her by her children in the manner directed in the will. This is the natural and plain construction of the instrument; it carries into effect what was evidently the cardinal object of the testator. If I am correct in this view of the case, the judge erred in the construction which he gave to the will, and a new trial must be granted.

The evidence as to the possession of Henry Elias of the prem¡seg fn question, after the division which appears to have been made between the children, is somewhat contradictory. ^ that was a point relied upon by the plaintiff, it should have been submitted by the court to the jury as a matter of fact. The court, however, without, adverting to that point, expressed a decided opinion against the defendant upon the construction of the will. x

New trial granted.