O'Hara v. Dever — 46 Barb. 609

Majority

p. 609

Mary O’Hara vs. Cornelius Dever and another, executors of Peter O’Hara, deceased, and others.

Headnote

A devise and bequest of all the rest, residue and remainder of the testator’s estate, both real and personal, to his two children, “ subject, nevertheless, to the dower and thirds ” of his wife, gives the widow no interest in the personal property.

THIS is a case made, for the purpose of obtaining a construction by this court, of a clause in the will of the late Peter O’Hara, who died at Brooklyn, in the year 1863, leaving a valuable estate, estimated to be worth two hundred thousand dollars, one half of which consisted of real estate and the other half of personal property. The personal estate comprised leasehold interests, under the Brooklyn Benevolent Society, to the extent of about seventy per cent thereof, leaving a balance of about thirty thousand dollars in cash and stocks. He. left -him surviving a widow and three children, and to them left his estate, by a will which was duly proved before the surrogate of Kings county. ’ He devises to his widow, the plaintiff herein, the house in which they resided,

p. 610

with the furniture. He provides for one of his children, a son, Jean Baptiste O’Hara, an annuity of seven hundred and fifty dollars during life, and charges it upon his whole estate, and then disposes of the residue of his property to his two other children, subject to the dower and thirds of his wife, in the following manner: (í I give, bequeath and devise all the rest, residue and remainder of my estate, both real and personal, to my son Edward Lawrence O’Hara, and daughter Cecelia A. O’Hara, to be devided between them, share and share alike, subject, nevertheless, to the dower and thirds of my wife, Mary O’Hara,

Jean Baptiste O’Hara, one of the legatees named in said will has since died,. Cecelia' A. O’Hara, another of said legatees and devisees, died on the 5th day of May, 1865, unmarried, under age and without issue, leaving a last will and testament, which was duly admitted to probate by the surrogate of Kings county as a. will of personal estate, and, letters testamentary were duly granted thereon to James, Sullivan as her sole executor. On the settlement of the accounts of the' executors of the said Peter O’Hara, before the surrogate of Kings county; the said Mary O’Hara, the' widow of said Peter O’Hara, claimed that Under and by virtue óf the said will, she was entitled to one third part of all of the personal estate of said Peter O’Hara remaining after the payment of his debts and the legacies in said will mentioned. The said Edward Lawrence O-Hara claims that he is entitled to one half of the surplus of said personal estate remaining, after the payment of his debts and the said legacies. The said James Sullivan, as executor of the last will and testament of Cecelia O’Hara,, submits the determination of the question to the consideration of the court

By the recommendation of the surrogate of Kings county, the question in difference was submitted to the Supreme Court, at general term.

The question presented for the determination of this court arises under the foregoing clause of the will: Whether the

p. 611

plaintiff is debarred by the devise therein contained, of her right to one third part of the surplus of the personal estate of her said husband, remaining after payment of his debts and testamentary expenses.

H. G. Murphy and Alex. McCue, for the plaintiff.

I. The right of the widow to one third of the surplus of the personal estate of which her husband died possessed) accrued to her on her marriage, subject to be divested only by express disposal by him, by will to other persons. The statute of distributions, which is a copy of the English statute on this subject, does not create this right, but only regulates the administration of the personal estate in conformity with the common law, by which her thirds in the personal property - was originally as undevisable by her husband as her dower, and which was subsequently modified only so as to give the husband the power to dispose of it by vzill. Hence the intention of the testator to deprive her of this right must be expressed in the will, either by explicit language disposing of it, or by other provisions clearly denoting such intention, which do not exist in this will. (2 Black. Coin. 32.)

II. The language of the will, fairly interpreted, expressly reserves this right of one third of the personalty to the plaintiff, by the expression reserving to her dower and thirds. Dower is never expressed by thirds alone. It has a fixed determinate meaning at common law, which' never uses the word “thirds” in its place. Thirds, or third part, on the other hand, as applied to the estate of a decedent, is the only word used in the statutes, in connection with the right of the widow to that portion of the personal estate. If it be ever loosely 'used elsewhere, synonymously with dower, it is always disjunctively, “ dower or thirds,” which indicates a special meaning. It is never used conjunctively with dower, as “ dower and thirds,” except in connection with the personal estate, as in the present instance. (2 Roberts on Wills, Am. ed. 143.) Clerk’s Assistant, (Ruggles’) 148. Smith

p. 612

v. Smith, 5 Vesey, Jr. 189. Palmer v. Voorhis, 35 Barb. 479 . 3 R. S. 183, 5th ed.)

III. The rule of construction, both in England and this country, requiring a meaning to be given to every word in a will, where it can be given consistently with the intention of the testator, seems conclusive in this case. The words “dower and thirds ” denote something' additional to dower, and properly and reasonably the words “ and thirds ” must, therefore, be applied to the “personal estate,” which forms a part of the devise, and be construed to restrict its disposal. An intention of the testator, after bequeathing the personal property, to express a reservation of this right of his wife, could hardly have been expressed in any more explicit way, without a great redundancy of language. If this construction be not given, then the words “and thirds” have no meaning, for the word “ dower,” of itself, expresses all that was intended in regard to the real estate. (2 Jarman on Wills, 526, Am. ed. 743, Eng. ed. rule 16. Doe v. Rawding, 2 Barn. & Adol. 448. Dawes v. Swan, 4 Mass. R. 208 . Parsons v. Winslow, 6 id. 175. Doe v. Green, 2 Jur. 859.)

IY., There is no intention expressed in the will, on the part of the testator, to deprive the plaintiff of her interest in his personal estate, and she is therefore entitled to' have . and receive one third of such personal estate remaining after the payment of his debts and testamentary expenses. .

D. P. Barnard and Edward Pearsall, for Edward Lawrence O’Hara.

I. The widow of Peter O’Harra can claim no part of the surplus of the personal estate of the deceased under 2 Bevised Statutes, 96, section 75, because, 1st. The deceased did not die intestate. 2d. The whole surplus was bequeathed to his two children, Edward and Cecelia. ■

II. The testator has expressly disposed of all the surplus of his personal property to his two children, Edward and Cecelia, and there is noting in the bequest from which it can

p. 613

be implied that he intended to give his widow one third of his personal estate. (2 Jarman on Wills, 742. Colleton v. Garth, 6 Sim. 19.)

III. The expression, “subject to the dower and thirds of my wife Mary O’Hara,” can not be construed into creating a bequest of one third of the personalty. 1st. Because, had he intended to give her more of the personal property than was specifically bequeathed to her, he could have used more apt words than subject, which means a burthen, or a description of the incumbered condition of the property. 2d. The words “ dower and thirds” are generally used in reference to real estate only. (McCall’s Clerk’s Assistant, 157, 556, 2d ed.) 3d. A devise of lands subject to a mortgage or incumbrance, in England, does not throw any charge on the lands to pay the debt, or exonerate the personal estate of the testator therefrom. (2 Jarman on Wills, 553. Serle v. St. Elroy, 2 P. Wms. 386.) 4th. The testator, in the use of the words subject to the dower and thirds of his wife, refers to something belonging to her which he had no right to dispose of. 5th. Even if the testator was of the mistaken opinion that the law gives his wife one third of the personalty, she can not take any under this will So, if he was of the opinion that she was entitled to dower in the houses or leasehold premises.

IY. There is nothing in the surrounding circumstances of the testator to lead to the inference that he intended or even desired to give his wife one third of his personal estate. 1st. He gave her a dwelling house and all the furniture therein. 2d. She was entitled to dower in $100,000 of real estate. 3d. She had. no children to support out of her income. 4th. It does not appear that the will was drawn by one incompetent to express in words the intention of the testator.

Y. It is insisted on behalf of Edward Lawrence O’Hara, that he is entitled to judgment for one half of the surplus of the personal estate.

The husband of the plaintiff died, leaving a will, and therein bequeathed the whole surplus of his personal estate remaining after the payment of debts and legacies, and the plaintiff is entitled to no share of such estate, unless it is obtained by the terms of the will itself. The testator, by the fifth clause of his will, bequeathes and devises all the rest, residue and remainder of his estate, both real and personal, to his two children, “ subject nevertheless to the dower and thirds of my wife, Mary O’Hara.”

This clause presents two questions. Do the words dower and thirds .have reference to the real estate only; and if they "can fairly be construed to refer to both real and personal property’ what rights did the widow get under them in tile personal property bequeathed by this'clause. I am satisfied that" the word thirds has’ no reference, in this clause, to the personal property. If the widow was entitled to distribution, as in case of intestacy, she would take absolutely one third of the personal property! The clause in question gives all his real and personal property to his children, “to be divided detween them, share and share alike,” subject to the dower and' thirds of his .wife, Mary O’Hara. It seems to me quite improbable that the testator intended that his personal property was to be divided in three parts, from this language. The gift is subject to the dower and thirds, burdened with a recognized legal lien and right, and such an estate could only exist as to the real estate. She hacl no claim to the personal estate, except by this will. The will has not given it, except by this clause, and the clause refers to dower and thirds as an existing thing, subject to which this estate is given.

If the words can be construed to refer to real and personal property, then I think they are not sufficient to bequeath any portion of the personal estate. The gift to the children is absolute, subject to the plaintiff’s thirds. She had no thirds. The testator has failed to convey to her any interest,

p. 615

[Kings General Term,

February 12, 1866.

and the gift to his children, subject to a claim which had no existence, is an absolute gift.

I think the plaintiff not entitled to any interest in the personal property, under the fifth clause of the will of the deceased, and that distribution is to be made to the children of the deceased, share and share alike, as named in that clause, by their representatives.

Judgment accordingly.

Scrugham, J.

Cases cited

Palmer v. Voorhis 35 Barb. 479 N.Y. Sup. Ct. 1861-12-09 p. 612