American Baptist Home Mission Soc. v. Bowman

DONAHUE, Circuit Judge

(after stating the facts as above). It is a fundamental rule, so thoroughly established in both state and federal jurisdictions as to be no longer open to controversy, that a will must be construed-to give effect to the intention of the testator, in so far as that intention can be ascertained from the language used by the testator, considered in connection with the entire will and with due consideration of its general scope and purpose.

No other part of Ann Toland’s will affords any aid whatever in ascertaining the intention she endeavored to express in the fourth item thereof, other than the presumption that obtains that where one makes a will he is presumed not to have intended to die intestate as to any part of his property. A careful analysis of the fourth item of this will discloses several provisions which, while distinct and severable, must nevertheless, be construed together in order that effect may be given to each. The first of these is as follows:

“I give, devise and bequeath to my adopted children Rhoda Ann Eliza Larkins and Ada Jane Larkins all the real estate I now own or may hereafter «orne in possession of.”

This language, unmodified or unexplained by other provisions of the will, would undoubtedly vest a fee-simple estate in the devisees named therein. But it is modified and explained, and the intention of the testator as to the estate in these lands she devised to these sisters clearly appears, by the further provisions in that item in immediate connection therewith. The first of these reads:

“This bequest carries with it no right to dispose of the real estate thus devised except by will in case they.should marry and have issue.”

The second:

“If either should die without issue then the other, or her heirs shall fall heir to the interest of the decedent.”

The third:

“If both should die without issue, then I will and devise one-third of my real estate to John Quincy Goodrich, one-third to Eddy Eugene Larkins and one-third to Frances E. Moody for her use and benefit during her lifetime.”'

Each and all of these provisions negative beyond all question the claim that Ann Toland intended to devise a fee-simple estate to Rhoda and Ada Larkins. On the contrary, it is entirely clear that she intended to devise a life estate, coupled with the power of appointment by will, to be exercised only in case they should marry and have' issue. While the testatrix, no doubt, contemplated that, in case these girls should marry and have issue, such issue would, in all probability, be the beneficiaries of this ]DOwer of appointment, nevertheless her will leaves the selection of beneficiaries to their discretion, but neither, could exercise this power of appointment by will unless she had issue, and upon the death of both sisters without issue the remainder in fee simple would pass under item 4 of this will to the person named therein.

The holding of the District Court that the testatrix had the power “to limit the mode of alienation to ‘will’ if she desired” is fully •sustained by the authorities cited in its opinion. We also fully concur in the further finding of the District Court that:

“There is no ambiguity in the will. There is no question but that by the first sentence of item 4 the testatrix devised a fee-simple estate. Thfe language of the second sentence is unambiguous. It specifically directs the mode of alienation. The language is subject to but one construction. If the estate conveyed in the first sentence of the fourth item can be lessened by a second or subsequent sentence or item in the" will, then it is manifest that the-second sentence reduces the fee to a life estate. A fee-simple title with limited power of alienation is impossible.”

It is unnecessary at this time to determine whether there is a devise by implication of the remainder in fee to the issue of the Larkins sisters, in case either or both should die leaving issue without having exercised the power of appointment. That question, however, is fully discussed in Re Disney’s Will, 118 App. Div. 378, 103 N. Y. Supp. 391, and cases therein cited. While this case is reversed by the New York Court of Appeals (190 N. Y. 128, 82 N. E. 1093), nevertheless the reversal is based wholly upon the holding by that court that the legacy had lapsed. See, also, Close v. Farmers Co., 195 N. Y. 92, 100, 87 N. E. 1005, and cases there cited; Page on Wills, 468. The attempt of the Earkins sisters to convey by deeds estates in fee simple in these lands, to the grantees named in their respective deeds, is in direct disregard and defiance of the express provision in Ann Toland’s will that the bequest to them carried with it “no right to dispose of the real estate thus devised except by will in case they should marry and have issue.” This provision immediately follows and must be construed in connection with the devise to the Larkins sisters. It follows that the plaintiff in error cannot claim any greater title or estate in these lands than the Larkins sisters had the power to convey by deed, and that was a life estate only.

For the reasons stated, the decree of the District Court is affirmed.