Opinion
January Term, 1900.
Judgment affirmed, with costs.
It would be multiplying words to add anything to the general discussion of the main question involved in this case contained in the clear and able opinion of Mr. Justice Beekman at Special Term. ( 27 Misc. Rep. 427.) The only criticism which the appellant makes upon the learned judge's conclusion, to which a sufficient answer is not found in the opinion itself, is that the estate given to Fenton was something more than the usual life estate; that the property was given to him absolutely for life, with power to use the corpus as well as the income. It is difficult to perceive the force of this suggestion upon the underlying question. If the absolute power of disposition was annexed to Fenton's life estate, then the fee itself was alienable by him; and if not so annexed, he could alien the life estate, and that only. The question whether the future estate suspended the absolute power of alienation for more than the two specified lives is unaffected by either consideration. We think, however, that the appellant's counsel proceeds upon an inaccurate view of the language of the will conferring this life estate. No express power of disposition of the fee during his life is given to Fenton; nor does the language used confer such a power by implication. The devise is to Fenton "to have, hold and enjoy" the property for and during the term of his natural life; and the remainder, existing after his death, is given in fee simple absolute to the corporation to be formed. This language does not bring the case within the rule laid down in the cases of Terry v. Wiggins ( 47 N.Y. 512), Thomas v. Wolford (49 Hun, 145) and Leggett v. Firth ( 132 N.Y. 7). In Terry v. Wiggins there was a devise of the lands to the testator's wife for her own personal use, with power to sell or otherwise dispose of the property should she require it or deem it expedient, with remainder over at her death to a certain religious society. It was held that the wife took an estate for life, with power during the continuance of her life estate to defeat the remainder by a sale of the subject-matter of the devise. In Thomas v. Wolford the devise was to the testator's wife for life, and at her death the property, should there be any left, was to be divided among the children of their heirs. It was held that the words italicised indicated a clear intention that the widow should have the power of disposal of the corpus of the estate. Similar words were held in Leggett v. Firth to confer by necessary implication a power of disposition. In all three cases, however, it was distinctly held that the power of disposition annexed to the life estate did not operate to enlarge the latter to a fee; and that the limitation over was valid and took effect as a valid remainder in fee, subject to the exercise of the power. It is evident that the construction here given by the appellant to the clause of the will in question is unwarranted. The language used imports enjoyment and disposition of the life estate, and nothing more. The power of disposition of the fee is not to be lightly implied — certainly not from language entirely consistent with special reference to the life estate. That intention cannot be inferred from such a mere formal expression as the "remainder thereof existing after the death" of the life tenant, following the devise to the latter "to have, hold and enjoy" during the term of his natural life, especially as the remainder is in terms "in fee simple absolute" to the corporation to be formed. The appellant's argument calls for no further consideration. The appeal is without merit and the judgment should be affirmed, with costs, for these reasons and upon the opinion below. Van Brunt, P.J., Rumsey, O'Brien and Ingraham, JJ., concurred.