p. 116Catherine McDonald, Respondent, v. Catherine McDonald, Appellant, Impleaded with Daniel E. Kenny and Catherine McDonald, Executors, etc., of James McDonald, Deceased.Headnote
Will—devise to two sisters as individuals and not as a class.A devise in the following terms : "Second. I give and devise'to my sisters Mar- . garet and Catherine the lot of land with the house thereon erected known as Number Four hundred and fifty West Thirty-third street in the city of New Tork to them and their heirs forever,” is a devise to the two sisters mentioned as individuals and not as a class. In the event of the death of one of the two sisters before that of the testator, only the undivided one-half of the land devised will pass to the survivor, especially where it appears that after the death of such sister the testator executed a codicil to the will and made- no ¡change in the devise. . .
Appeal by the defendant, Catherine McDonald, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county. of New Tork on the 26th day of December, 1901, upon the decision of tlie ■court, rendered after a trial at the New Tork Special Term, as ■adjudges that “ the plaintiff, Catherine McDonald, and the defendant, Catherine McDonald, are entitled to and hold as tenants in common each the one undivided half part ” of the premises in said judgment described, and as adj udges that said premises be sold at public auction as in said judgment provided, and as adjudges that- Henry B. Wesselman be appointed referee to take and state the account '■of the rents and profits of the premises described in said judgment, "to one-half of which Catherine McDonald, the plaintiff, and Catherine McDonald, the defendant, are entitled. ' '
John Hardy, for the appellant.
David McClure, for the respondent.
The action is brought to partition certain property,, the complaint ¡alleging that the plaintiff, who was the widow and residuary devisee under the will of James McDonald, deceased, and the defendant Catherine McDonald, who was a sister and devisee with her sister'Margaret of the land in question in this action under the will of said dece
p. 117dent, are tenants in common, each seized of an undivided half thereof. The question arises under the will of said James McDonald, who at the time of his death was the owner of the premises in question. By his will he disposed of the premises by the following provision : “
Second. I give and devise to my sisters Margaret and Catherine the lot of land with the house thereon erected known as Number Four hundred and fifty West Thirty-third street in the city of New York to them and their heirs forever.” By the 9th clause of his will the testator provided, “ all the rest, residue and remainder of my estate I give, devise and bequeath to my wife Catherine McDonald, to her and her heirs forever.” This will was dated on the 6th day of November, 1896. Margaret McDonald died on the 28th of July, 1898, unmarried and without issue. After the death of Margaret, the testator executed a codicil to his will, but without making any change in this provision to which attention has been called. The testator died on the 22d of May, 1899.
It is claimed that this devise to the testator’s two sisters was a devise to them as a class and that thus the principle of survivorship applied ; but we think from the language used that this construction of the will cannot prevail. The bequest is to his sisters Margaret and Catherine, to them and their heirs forever. The devisees are named, and although their full names are not specified, they are sufficiently identified by the words “ my sisters Margaret and Catherine.” The devise is, therefore, not to his sisters as a class, but to the individuals designated, and the property is given to them and their heirs forever. By section 56 of the Beal Property Law (Laws of 1896, chap. 547), it is provided that “ every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.” There is no question but that had Margaret McDonald outlived the testator, these two sisters would have taken the land as tenants in common. The language used plainly indicates a devise to individuals, and not to a class. No words of survivorship are used. There is no indication from which it could be inferred that the testator intended that the survivor should take in case of the death of one of the devisees ; and the fact that he made a codicil to the will after the death of Margaret McDonald without changing this provision, would seem to
p. 118indicate that he had no intention of giving to Catherine' a larger interest than that given to her by the will, namely, an undivided one-half of the property in question. But we think this case is entirely within
Matter of Kimberly (
150 N. Y. 90 ). In that case the will was as follows: “ I give, devise and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situate, "Unto my three sisters, Mary, Annie and Louisa; ” and it was held that the devise and bequest were to the sisters as tenants in common, and not a devise and bequest to a class. (See, also,
Matter of Russell, 168 N. Y. 169 .)
There is no indication in the will, or in the circumstances that existed when the will was executed, that would justify the court in changing the legal effect of the language used by making this a devise to a class, instead of to the individuals specifically named as the devisees.
It follows that the. judgment appealed from was right, and should be affirmed, with. costs.
Van Brunt, P. J., Patterson, McLaughlin and Hatch, JJ.,. ■ concurred.
Judgment affirmed, with costs.