Kelley v. Hogan

O’Brien, J.:

The questions for our determination are: Was there a valid limitation upon the, estate of Sylvester in favor of Ralph W. Maverick,, and is it still effective ?

As stated by the plaintiffs’ counsel, “ probably no branch of the law of estates created by wills presents such an apparent conflict of decision as the question whether a valid remainder can be limited on an estate upon the non-exercise by the first taker of a power of disposition.” The artificial rules of construction based in part on the use or absence of the words “ heirs, issue,” etc., which were in force prior to the Revised Statutes, no longer obtain; and the controlling factor now is the inteiition of the testator and the testamentary scheme, which is to be. gathered from a reading of the entire will. An illustration of the view taken before the Revised Statutes is to be found in the case of Paterson v. Ellis (11 Wend. 259). So also in the early case of Jackson v. Robins (15 Johns. 169) it was held, as summarized in the head note, that “ where A devises all his estate to B * * * but. in base of B’s death without disposing of it by will or otherwise, then to his daughter, B takes under the devise the entire fee and the subsequent limitation to the daughter is consequently void.” The more modern view can be found discussed in the case of Norris v. Beyea (13 N. Y. 273), relied upon by the plaintiffs. It was therein said: “It is an obvious dictate of reason as well as a settled principle of law that all the parts of an instrument are to be taken together in ascertaining its" meaning, and that no part of it should be rejected as inoperative if the whole can reasonably stand together.” And it was accordingly held, construing the will there involved, that where, after a devise or bequest in language denoting an absolute gift of the whole estate in fee, there is in a subsequent part of the same will a limitation over in the event of the first devisee dying under age and wdthout issue, the gifts are not repugnant to each other, but the latter is a valid executory gift. In that case, nevertheless, the principle was recognized that if the first legatee is authorized to spend the principal for his own purposes, a subsequent limitation to take effect upon a contingency, would be void on the ground of repugnancy ; and it will be noticed that the devise over which was held good, was one applying in case of the death of the first taker during infancy.

We have been referred to no case, wherein the legatee had the power of disposition by will, that he did not take ah absolute estate. This power of disposition by will has been regarded as a controlling element and a crucial test upon the question as to whether the estate given is absolute or. defeasible. If the legatee can only dispose of the estate during life, then the limitation over has been sustained because within the protection of the statute. But a similar rule has. not been applied where there has also been conferred upon the legatee a right to dispose of the corpus by will.

The question received a thorough discussion in the case of Van Horne v. Campbell (100 N. Y. 287) wherein the authorities are collated, and the extent to which the rule of common law has been changed by the Revised Statutes is considered. There the testator devised real estate to his wife for life, with remainder to his són D. “his heirs and assigns forever,” and another parcel to his son H.. and the will provided subsequently that if either of the sons died “ seized of the estate hereinbefore bequeathed or any part thereof, without lawful -issue, that then the estate of him so dying seized * shall descend to the other.” It -was held that the limitation over was void, and D. obtained an absolute title, he having gone into possession after the death of the widow. - Since this case was decided, it was held in Greyston v. Clark (41 Hun, 125) where the will gave to a wife real and personal property “ absolutely * * * and with full power ana authority to sell or mortgage as she thinks proper,” and provided that such of the property as remained when she died should -be divided among others, that “ the estate given by the testator to his wife was of such á nature that she could dispose of it all during her lifetime for any purpose she should judge -to be for her Use or benefit,” but could not dispose of it by will, and so much as remained was to be divided as directed by the testator. It has not been held, however, that where the legatee was given the power of disposition by will, the limitation over was valid; and, as stated, the authorities are the other way. In the present instance, the legatee could not only enter into full possession of the property with power to sell or use it in any manner, but in addition, as expressly provided, might will it as he saw fit. Under such circumstances, an absolute and complete estate was given and, therefore, the subsequent provision giving the property to a trustee for the benefit of Ralph W, Maverick was void as repugnant.

Upon principle, therefore, as well as upon authority, we think it was not intended that the Revised Statutes should in any way change the rule that where the entire estate is given with the power absolutely to dispose of-it by deed and by will, there is nothing left in the testator upon which a limitation over can take effect. This is but another way of saying that after one has given his entire estate away once, he cannot give it away again. What the testator here intended was to give the property absolutely to Sylvester should he return from foreign parts and enter into possession, which, as we have seen, he did. It was only in the event of his not returning and entering into possession, that provision was made for a trust in Ralph’s favor which was. to continue during his infancy, or at most during life.

It will be noticed that unless this construction prevails the result will be that after the trust in favor of Ralph ceases, there is no one who is thereafter to take the property; and thus, in a will where it is clear that the testatrix- intended to make a disposition of her entire property, she would, after the trust estate ceased, have left the property undisposed of. In doubtful cases where the testator shows an intention to dispose of all his estate, that construction should be adopted which favors vesting, rather than one which leads to the conclusion that-the testator died without having made a full disposition of it.

It .is unnecessary to consider the other contentions of the defendant that this trust is void for the reason that the corpus and not the rents and profits are directed to be. applied, and constitutes only a power in trust, ceasing when the cestui que t/rust reaches majority, and that the trust in any event is terminated, as its purpose was to provide for the maintenance and education of Maverick, and to fit him for some useful occupation, which purpose must be deemed to have been accomplished when he reaches majority. On the ground of repugnancy, therefore, we think that the clause relating to Maverick was void and the defendant is entitled to judgment.

Judgment accordingly ordered for defendant, with costs.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred; Laughlin, J., dissented.