Opinion
June Term, 1897.
A.J. Rodenbeck, for the appellants.
B. Frank Dake, for the respondent.
The plaintiff concedes that the heirs at law of Julia Wilson are entitled to an undivided half of the lot, and contends that she, under the 4th clause of her husband's will, is entitled as owner in fee of the undivided half thereof of which her husband died seized. The heirs of Julia Wilson assert that they are entitled, not only to the undivided half formerly owned by her, but are also entitled as owners in fee of the undivided half of which their uncle, Michael Riley, died seized by virtue of the 2d and 3d clauses of his will.
It will be observed that two pieces of real estate in the city of Buffalo are described in the 1st clause of the will; one was conveyed to the testator by Adams Clark, and the other was conveyed to him by McDonald, the latter of which is charged with the payment of a legacy of $500 to the St. Vincent Female Orphan Asylum of Buffalo. By the 2d clause, the testator devised and bequeathed all his real estate and property to his wife for life, or so long as she should remain unmarried, and after her death to the four sons of his sister, Julia Wilson, in fee, to be divided equally among them. This clause is unambiguous, except in respect to the duration of the widow's estate, and by it standing alone she would take the use of the estate so long as she remained unmarried, or for life, and the nephews the fee after her marriage or death.
The 2d clause is modified by the 3d — the 3d providing that, in case the testator's widow marries, the fee of the real estate deeded to him by Adams Clark shall pass to her, her heirs and assigns forever, and that her right in the other piece of real estate conveyed to him by McDonald shall then cease, and that his four nephews shall then become the owners in fee and entitled to the possession thereof, subject to the legacy of $500 charged thereon and to a mortgage of $1,000. The 2d and 3d clauses of the will, read together, are unambiguous, so far as they relate to the two parcels of land described in the will, and by those clauses upon the marriage of Margaret Riley she became entitled to the fee of the land conveyed to her husband by Adams Clark, and the nephews to the fee and possession of the piece conveyed to him by McDonald.
I am unable to see any ambiguity in the 2d and 3d clauses in respect to the disposition of the fee of the real estate owned by the testator other than that specifically referred to in the will. By the 2d clause he devises all of his real estate to his wife, "during the term of her natural life, or so long as she shall remain unmarried, and after the death of my said wife to the four sons of my sister Julia Wilson, of the city of Rochester, in fee simple, to be divided between them equally, share and share alike."
This language is broad enough to embrace and carry all of the testator's real estate, wherever situated, and by it the fee vested in his nephews on his death, their right of possession being postponed until the termination of the estate of his widow.
The only ambiguity in the 2d clause lies in the words "during the term of her natural life, or so long as she shall remain unmarried, and after the death of my said wife." It seems to me that the words "or so long as she shall remain unmarried" qualify the preceding and succeeding words of the sentence and limit the right of the widow to the use of the estate to the period of her widowhood, and that upon her remarriage she took the fee of the land conveyed to the testator by Adams Clark in lieu of the use of the testator's entire estate. I do not think the testator intended to offer his widow a premium or a pecuniary inducement to remarry by giving to her on that event the fee of part of his realty and continuing her right to use the remainder, except the lot conveyed to him by McDonald, during her life, but that his intention was that, upon her remarriage, his nephews should take the fee with the right to the immediate possession of all his realty except that conveyed to him by Adams Clark. Such seems to me to be the natural construction of the 2d and 3d clauses.
It is urged that the testator, when he executed his will, did not know, or if he had known had forgotten, that he had an interest in this lot and in the adjoining lot involved in the other action. This seems an unwarranted presumption. The testator's father acquired title to this lot by a deed dated April 3, 1837, which was recorded in the office of the clerk of the county of Monroe in Book 41 of Deeds, at page 280. His father had owned this real estate for more than twenty years before his death, which occurred February 9, 1859. He left a will by which he devised this lot to his widow for life, and, on her death, to his son Michael Riley and to his daughter Julia Riley, afterwards Julia Wilson. When the testator executed his will he had no right of possession to the lot involved in this action, because his mother, the life tenant, was then living (she died February 18, 1885, sixteen years later), and perhaps for this reason special reference was not made to it in his will. The testator was nominated as the executor of his father's will. It was not probated until July 22, 1881, thirteen years after the death of his son Michael, the executor therein nominated. In whose custody this will was after the death of the elder Michael and before it was probated, does not appear.
I find nothing in the case justifying the presumption that Michael Riley, the son, did not know of his interest in the Rochester lot, but even though he did not know of it, the language of the 2d clause of the will is sufficient to devise it.
The residuary clause under which the plaintiff claims carries nothing. All the testator's property was disposed of by the preceding clauses, and there is nothing in the residuary clause which limits or cuts down the devises previously made.
The result is that the plaintiff took no estate in the lot in question, under the will of her husband, which survived her marriage. Her right to dower was not considered in the court below, nor has it been discussed by counsel on this appeal.
The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the final award of costs.
All concurred, except ADAMS and GREEN, JJ., dissented.
I find myself unable to yield my assent to the conclusion reached in the prevailing opinion in this case, for the reason that the construction given by the trial court to the will of Michael Riley, Jr., is more in harmony with my views.
In attempting to give effect to this instrument, it may be well, as it certainly will prove helpful, to have recourse to one or two familiar canons of construction, one of which is to first ascertain, if possible, the general scheme or intent which the testator had in mind in disposing of his property ( Roe v. Vingut, 117 N.Y. 204), and, having done this, to accomplish such intent if possible, by giving effect to each and every provision of the will. ( Chrystie v. Phyfe, 19 N.Y. 344, 348; Taggart v. Murray, 53 id. 233.)
It seems to me quite clear, from a careful reading of the instrument in question, that it was formulated and executed upon the assumption that the testator's estate consisted principally, if not entirely, of the two lots situate on Canal street in the city of Buffalo, and "a small amount of personal property," mentioned in the recital which precedes the disposing clauses. That, having thus specifically inventoried his supposed estate, the testator proceeded to make disposition of the same by first bequeathing to the St. Vincent's Female Orphan Asylum of Buffalo, the sum of $500, and charging such legacy upon the Hector McDonald lot, and then devising and bequeathing unto his wife, Margaret Riley, all his real and personal estate and property, for the term of her natural life, or so long as she shall remain unmarried. This much accomplished, there follows the 3d clause, which contains the modifying provision that, in case his wife shall remarry, she shall take the "Adams Clark" lot in fee, and that her right and interest "in the other piece of real estate shall thereupon cease and determine." It is further provided that the nephews and nieces of the testator shall, in the event first mentioned, take the fee of the McDonald lot, subject to a mortgage of $1,000, and the legacy of $500 to the orphan asylum.
It is true that in the 2d clause the testator gives "all" his real estate and property to his wife, and, strictly speaking, this would ordinarily dispose of the entire estate. But it is quite obvious that the word quoted relates simply to all the estate and property which had been theretofore mentioned, and not to all which the testator might possibly possess. For, after providing that his widow should, in the event of her marriage, take the fee of the Adams and Clark lot, and cease to have any interest in "the other piece of real estate," he directs that his nephews and nieces "shall then become the owners in fee, and entitled to the possession thereof immediately." That is, that they shall take the McDonald lot, and not the residue of his estate.
In this view of the case, and in this manner only, can effect be given to the 4th or residuary clause of the will. For it is to be observed that, as is generally the case, the testator, after disposing of the bulk of his estate, in order to guard against intestacy as to any portion thereof, devises and bequeaths all the residue of his property, of every kind and description, to his wife, and her heirs and assigns forever.
It is not to be assumed that this residuary clause is mere surplusage, or that it was incorporated into the will without some well-defined object upon the part of the testator; nor is it to be so construed as to render it meaningless and of no effect, if such a result can be avoided. On the contrary, it is the duty of the court, in construing the same, to look at the entire instrument, as well as at all the circumstances surrounding its execution, in order that a proper interpretation may be arrived at. ( Kerr v. Dougherty, 79 N.Y. 327.)
Taking the will as a whole, therefore, I am of the opinion that it clearly appears that it was the intention of the testator to dispose of the two Buffalo lots and his personal property only, by the first three clauses of that instrument, and then to devise and bequeath the residue of his estate, if any there should be, by the 4th or residuary clause. If this view can properly be entertained, resort may then be had to still another rule of construction, which is that in such circumstances the language of the will may be subordinated to the intent of the testator. ( Phillips v. Davies, 92 N.Y. 199.)
GREEN, J., concurred.
Judgment reversed and a new trial ordered, with costs to abide the event.