In re the Final Accounting of De Witt Gardner

Hardin, P. J. :

Apparently the intention of the testator was to confide to bis wife tbe poiver “ to liave and to bold ” bis “ property and estate, both real and personal,” and to give her tbe power to use tbe income thereof, as well as tbe body of tbe estate; and foreseeing that she might not use up or consume tbe whole of tbe property be provided for two contingencies: first, that in tbe event slie did not make a disposition of any of tbe property that remained at tbe time of her death, that tbe same should pass to bis son Frederick; and, secondly, be apparently clothed her with power to dispose of what remained of tbe property at her death by will; and be circumscribed' tbe execution of that power by a declaration of bis expectation and desire to be observed and followed by bis wife in tbe event she exercised tbe power of disposition, of tbe property; and in doing so be used tbe words, “ and I expect and desire that my said wife will not dispose of any of said estate by will in such a way that tbe whole that might remain at her death shall go out of my own family and blood relation.” Such interpretation, such declaration of tbe intention of tbe testator, seems to be reasonable in tbe light of tbe language used by tbe testator. Such construction gives full force and effect to all tbe language used in tbe will, whereas, tbe construction put thereon by tbe surrogate seems to be in defiance or disregard of tbe last clause of tbe will. When tbe testator, by tbe language in tbe early part of tbe second clause of the will, had provided liberally for bis wife, evidently two ideas came to bis mind in respect to bis property; tbe one being a contingency that bis wife might leave at tbe time of her death unexpended or undisposed of, a portion of bis estate, and in that event be provided it to pass to bis son ; and bis second idea seemed to be that if she should dispose of tbe same (that is by will) then in providing for tbe contingency of her disposing of tbe same by will, be declares to her bis expectation and desire that she “ will not dispose of any of said estate by will in such a way that tbe whole that should remain at her death shall go out of my (his) own family and blood relation.” Apparently he bad great confidence that bis wife would carry out bis wishes. Tbe clause which we have been considering is followed by a declaration by the testator that be bad at different times advanced over $5,000 to bis son, and having said that be inserts a clause, viz., “ which is one reason why I do not now see fit to make a more liberal provision for him in this will.” The words “ not now see fit to make a more liberal provision for him in this will ” are suggestive of the idea that he had reposed confidence in his wife that when she came to dispose of such part of the estate as should remain at her death that she would provide for his son. She seems to have acted upon that expectation and desire and fulfilled to a large extent the confidence reposed in her by her husband, as in the first clause of her will she devises to the son the brick house and lot situated on the corner of Broadway and Third street, and also bequeaths to him his father’s gold watch and the family library, “ all silver purchased by his father; his father’s portrait in oil, dinner, breakfast and tea set of white china, best black walnut chamber set with some bedding,” as well as some other articles of furniture. And in the residuary clause of her will she provides that what shall remain after disposing of the specific legacies and devises, that the remainder shall be divided into four equal parts, one of which is given to the son. In view of all the provisions alluded to we are of the opinion that what portion of the testator’s estate remained unexpended or otherwise undisposed of at the time of the decease of the wife, passed under the provisions of her will, and that the execution of her will was in pursuance of the expectation and desire expressed to her by the testator, and the authority and power given to her by his will to dispose of such portion of his estate as remained in her hands at the time of her death. (Terry v. Wiggins, 47 N. Y. 512; Flanagan v. Flanagan, 8 Abb. N. C. 418; Greyston v. Clark, 41 Hun, 125; Wells v. Seeley, 47 id. 109; Norris v. Beyea, 13 N. Y. (3 Kernan) 273; Leggett v. Firth, 53 Hun, 152; Crozier v. Bray, 120 N. Y. 366 ; Smith v. Van Ostrand, 64 id. 278; Rose v. Hatch, 125 id. 433; Wortman v. Robinson, 44 Hun, 357; In re Williamson's Estate, 9 N. Y. Supp. 476; Colt v. Heard, 10 Hun, 189; Matter of Blauvelt, 39 N. Y. St. Repr. 774.) The foregoing views lead to a reversal of the orders appealed from.

Martin and Merwin, JJ., concurred.

Order or decree reversed and proceedings remitted to the Surrogate’s Court for further hearing, with a provision that the costs of appellants be paid out of the estate.