Henderson v. Merritt — 10 A.D. 397

Majority

p. 397

Mart G. Henderson, Appellant, v. Emily Merritt, Respondent.

Headnote

Will — rule that a later devise will prevail over an earlier one — a■ devise of a part of a lot to one person and, subsequently of the whole to another, construed.

The rule which sacrifices the former of several contradictory clauses of a will is never applied, except in the event of the failure of every attempt to give the whole will such a construction as will render every part of it effective.

In an action brought to compel the determination of a claim to a piece of land of twenty feet at the south end of premises known as the Miner lot, both parties claimed title under the will of Clark S. Merritt, who devised to his wife the house and store which he occupied, “ together with twenty feet from the south end of the lot occupied by Mrs. Miner, with a right of way thereto, as at present used,” and directed that this bequest should become operative when his son Clark should attain the age of twenty-one years. He also devised to his daughter Hannah Matilda "the Miner place for the term of her natural life and on her decease to her heirs forever. This devise is to take effect when she shall attain the age of twenty-one years.”

p. 398

Held, that the devises to the widow and to the daughter Hannah Matilda were not irreconcilable, the obvious intent of the testator being to devise the twenty feet at the south end of the Miner lot to his wife and the rest of the Miner lot to his daughter.

Appeal by the plaintiff, Mary Q. Henderson, from a judgment, of the Supreme Court in favor of the defendant, bearing date the 11th day of April, 1896, and entered in the office of the clerk of the county of Westchester, upon the decision of the court rendered after a trial at the Westchester Special Term.

John H. Clapp, for the appellant..

Wilson Brown. Jr., for the respondent.

This is an action to compel the determination of a claim to real property. The plaintiff and defendant both claim title, under the will of Clark S. Merritt, deceased. The plaintiff is his granddaughter, being the daughter of the testator’s daughter Hannah Matilda, and the defendant is his widow. The material parts of the will are as follows :

“ I also direct that my wife be at liberty to occupy the present apartments over my store ■ for a dwelling until my son Clark shall become twenty-one years of age, and receive all the rents of my other real estate and the yearly interest of all my money, except as such rents and interest shall be modified by bequest hereinafter made; in consideration of which she is to afford a home for all my children until each shall become twenty-one years of age, and support free of charge as well as suitable clothing.

“ I give and devise unto my wife, Emily, the house and store which I now occupy, together with twenty feet from the south end of the lot occupied by Mrs. Miner, with a right of way thereto as at present used. This bequest to become operative when my son Clark shall attain the age of twenty-one years; subject, however, and this bequest is expressly charged with the payment of five hundred dollars to my son Clark when he shall attain the age of twenty-one years. * * *

“ I give and devise unto my daughter, Hannah Matilda, the Miner place for the term of her natural life, and on her decease to her

p. 399

héirsrforever. This devise is to take effect when she shall attain the age of twenty-one years.”

The premises in dispute is the tract of twenty feet at the south end of the Miner lot.

The appellant first objects to the recovery below, that the devise to the testator’s widow unlawfully suspends the power of alienation and is void. I confess that I have no very clear conception of the idea of the testator in the clause of the will secondly quoted; but it is not necessary that I should have. His intent in one contingency is unquestionable. On his son Clark reaching the age of twenty-one years the devise to the widow was absolute. This is the contingency that has occurred. It is only requisite to ascertain the intention of the testator in other contingencies that might have happened for the purpose of determining whether such intention would render the devise void. If no reasonable interpretation would invalidate the devise, it is immaterial which of several was his real intention. I can discover none that suspends the power of alienation for any period. The devise to the wife of the rents and profits until Clark arrived at age vested in her a legal title. It was at all times alienable by her. (Bailey v. Bailey, 97 N. Y. 460 .) If the devise of the fee when Clark became of age was vested and not subject to be divested by the death of Clark before that time (as I think was the case), this remainder was also always alienable by the widow. If the devise was to be contingent on Clark’s reaching full age, or subject to be divested by his death before that time, then the remainder in that contingency descended to the testator’s heirs at law. They and the widow, acting together, could at any time after the testator’s death convey an absolute title. The devise was, therefore, good.

The next claim of the appellant is that the devise to the widow and that to the testator’s daughter, Hannah Matilda, are repugnant, and that hence, under the well-established rule in oases of repugnancy, the latter devise in the will must prevail. “ But the rule which sacrifices the former of several contradictory clauses is never applied, but on the failure of every attempt to give the whole such a construction as will render every part of it effective.” (1 Jarman, *439. To same effect see 1 Redf. *448.)

We think that the two devises are not irreconcilable. The first

p. 400

devise is. of twenty feet of the Miner place. The second is of the Miner place. Ordinarily the designation of a tract, or farm, or plot includes the whole of the plot, and the use of the term in any other sense is not strictly accurate. But the question is not of accuracy of diction, but of the intent of the testator. When he devises to one person a part of a tract and then to another person the tract, it is apparent that in the latter devise he intends to give only the part of the tract previously undisposed of, the tract reduced or restricted by the previous devise. This seems to me so clear as to forbid elaboration and is justified by authority. In Holdfast ex dem. Hitchcock v. Pardoe (2 Sir Wm. Blackstone, 974) the testator devised to Elizabeth Hitchcock her farm in the possession of Charles Bocock, and subsequently in the will devised all her lands in Lowlayton Marsh to the chidren of her uncle, Henry Moore. Part of the Bocock farm lay in Lowlayton Marsh. It was held that the devises were not repugnant, and that Elizabeth Hitchcock took the pai't of the Bocock farm which lay in Lowlayton Marsh. This case is stronger than the one now before us.

The judgment appealed from should be affirmed, with costs.

All concurred, except Bartlett, J., not sitting.

Judgment affirmed, with costs.

Cases cited

Bailey v. Bailey 97 N. Y. 460 N.Y. 1884-12-02 p. 399