Floyd v. Caro

This judgment should be affirmed. The reasons why it should be affirmed, are set forth so concisely in the points submitted by the counsel for the respondent, that to a great extent it would suffice to repeat what‘he has said and refer to the authorities he cites. But he has not considered all the objections relied upon by the appellant, and as they will have to be passed upon, I will state my conclusions, generally, on the appeal, with the cases that warrant them, as follows:

1. The testator’s language in the introductory part of the will, that he was desirous of making a suitable and proper disposition of such worldly estate as he might leave ; the existence, with the specific devises, of a general residuary clause embracing all the rest, residue and remainder of his estate of every nature and description, not therein and thereby,—that is, by the will,—otherwise disposed of; and the provision in this residuary clause, that the whole income of the residue of his estate, which included the property in question, was to be paid to his wife during her life, and upon her death, the residuary estate was to go to such of his relations by blood or marriage, or the relations of Iris wife, as she might, by her will or other instrument, appoint, in such shares or portions, and on such conditions and limitations, as she might direct; show that his intention was to dispose of the whole of his property by that instrument (Youngs v. Youngs, 45 N. Y. 257 , and Youngs’ will, in the' printed case, submitted on the argument).

2. The special devises, after the death of his wife, of the property in Greenwich street to Laura F. Carow, and of that in Pearl street, to Sarah E. Saunderson, were to each respectively during their lives, with a contingent' remainder to their issue, each being, at the time of the making of the will; unmarried ; and as the contingency never happened, each having died without issue, and there being no further specific devise of the property, it came under the general residuary clause in the will, which provided for the disposition, as his wife should

3. The provision in the sixth, or residuary clause, directing the trustees, on the death of the testator, to transfer to those whom his wife should appoint, the personal property therein provided for, and “ all and singular my real estate not herein and hereby otherwise disposed of,” does not exclude this property from the residuary clause, for it had not been absolutely disposed of by the will—the absolute or final disposition of it being dependent upon a contingency that might not and did not happen, the devisees having died before the wife, at whose death, they were, if then living, to have a life estate in it.

4. This case does not come within the rule applied in Van Kleeck v. Dutch Church of New York (6 Paige, 108 ; 20 Wend. 600 ), that a residuary devise does not include real estate, which wás, in terms, absolutely devised to others who could not take from incapacity,—as in the case of a corporation incapable of taking by devise,—but descends to the heirs; the reason of the rule being that it appearing by the devise of the property in the will that the testator presumed that he had,' by his will, disposed of the entire fee absolutely, leaving nothing remaining

5. The appellant concedes the law to be, that where there is a distinct limited or contingent devise, couched in such terms that the testator could not but have had in his mind the possibility of its failure, and there is a sufficient residuary clause, the residuary devisee would take the reversion or remainder. The devise here, of this particular real estate, was to each devisee, “ during her life, and on her death to her issue, then her surviving, and the issue of such of them as may then have departed this life, the issue of any such deceased child taking per stirpes, and not per capita, in fee simple absolute and as the devisees, at the time of the making of the will, had no issue, and were unmarried, which was known to the testator, who designates them by their maiden names, one of them living in his family, and the other the niece of his wife, the testator must have had iu his mind, the possibility of the failure of issue, their having issue being one of those uncertain future events, of which any ordinary mind would take cognizance; and as there was, with this contingent special devise, a general residuary clause, the two are entirely consistent with each other;

6. The fact that the devisees were not to take this property until the death of the testator’s wife, and that, on the happening of that event, the residuary estate, except what was then otherwise disposed of under the will, was to go to the person or persons whom she should appoint by will, does not bring this case, as the appellant contends, within the rule, that where a part of the residue itself fails, that part does not go to augment the remainder of the residue, but is undisposed of, and goes to the next of kin (Skrymsher v. Northcote, 1 Swanst. 566). This rule, which has been applied in this state, in Kerr v. Dougherty ( 79 N. Y. 346 ), and Beekman v. Bonsor ( 23 N. Y. 312 ), may be illustrated by the case from which it was de rived,—Creswell v. Cheslyn (2 Eden, 123),—where the testator gave his residuary estate to his three daughters equally, as tenants in common, and then, by a codicil, revoked the devise ag to one of the daughters, giving her a pecuniary legacy instead; and, the legacy having lapsed, by her death before that of the testator, it was held that the legacy did not go to the other two residuary legatees, but, being undisposed of by the will, went to her next of kin; and in Bhrymsher v. Korthcote, above cited, which was founded upon this case of Greswell v. Gheslyn, the testator declared that the moiety of the residue, the income of which was given to his daughter for life, should, if she died without issue, be divided into two parts, which lie gave in equal proportions to a son and another daughter, and afterwards revoked the. part given to the other daughter, without making any other disposition of it; in respect to which, it was held that he died intestate. In these cases, the testator took a certain part from the residue, and making, in one case, another disposition of it, and in the other case, no disposition of it, it was held that it could not go back to augment the residue, as that was evidently not the testator’s intention; and hence, the rule that a part of the residue, of which the disposition fails, would not accrue in augmentation of the remaining parts, as a residue of a residue ; that it does not therefore, come under the

But the present is not a case of a devise of a part of the residue, which is subsequently revoked or withdrawn, making another or no disposition of it, or, like the cases in this state, where a devise of a certain or unascertained part of the residue fails, being invalid from uncertainty or other cause, but it was a special devise of a life estate in two distinct pieces of land, with a contingent remainder, which did not take effect, as the contingency by which it might have become an absolute devise in fee never happened, both devisees having died without issue, before the death of the testator’s wife, which left an alternative fee undisposed of, which passes to the residuary legatees under the general rule, that reversionary or contingent interests, not fully or completely covered by other parts of the will, are embraced by and come under the residuary clause. “ Residue,” says Sir Thomas Plumee, thq master of the rolls, in the case last cited, of Skrymsher v. Northcote, “ means all of which no effectual disposition is made by the will, other them the residuary clause; but when the disposition of the residue itself fails, to the extent to which it fails, the will is inoperative.” Where, as in Simons v. Rudall (1 Sim. 138), cited by the appellant, the testator subjects a certain part, in that case, one-fourth of his estate, to the appointment of the survivor of the tenants for life, and then gives the rest and residue of it, after their death, to others, and the survivor does not exercise the power of appointment, the part so subjected does not pass under the residuary clause, because it was expressly excluded; all that was given by the residuary clause being the rest and residue remaining after the part subjected to the power of appointment, which power never having been exercised, there was no disposition of it, and it went necessarily to the heirs or next of kin. But it has need that the testator must have used words clearly limiting the gift of the residue and showing in express terms an intention to exclude from it portions of his estate that fail to pass under previous clauses in the will, in order to take them out of the general rule [King v. Woodhull, 3 Edw. Ch. 82 , 84).

In the language of Bayley, J., in See v. Weatherby (11 East, 322), “ There must be sometheing in the will, either expressed, or necessarily to be implied, showing an intention of the. testator to exclude the reversion, in order to prevent the general words of the residuary clause from passing it.” In the language of Lord Elleuborough, in the same case, “ The operation of a residuary clause carries every real interest of every kind whatsoever, whether known or unknown to the testator, unless it be manifestly excluded.” “ I take the general rule of construction to be,” says Lord Tenterden, in Doe v. Fossick (1 Barn. & Ad. 186), “ that all the testator has, which is not ‘otherwise disposed of, passes under the residuary clause, unless there appears, from other parts of the will, a clear and manifest intention, that something shall not pass.” What is relied upon as showing such intention in this case is, that by the sixth, or residuary clause, the net income of the whole of the residuary estate is to be paid to the testator’s wife, during her life; and that, upon her death, it is, including all his real estate not otherwise disposed of by the will, to be conveyed by the residuary legatees and trustees, as she shall appoint ; and that, in the next, or seventh clause, he gives upon the death of his wife, a life estate in these two pieces of land, with a contingent remainder; thereby,' as it is argued, excluding it from the residuary estate which is to be conveyed, as his wife should appoint. But he does not exclude it. He left it, with other property, covered by like devises, to remain with the bulk and residue of his estate, during his wife’s life, to be separated only in the event of the devise taking effect, upon her death, by the devisees being then in being, or having issue. As they died, however, without issue, it has never been, and could not be, under the will, separated from a residue, so as to leave what is called a residue of a residue. It remained exactly as the testator left it, forming a part of his residuary

7. There was no error in excluding evidence that the testator had other real estate than that devised by the seventh clause, as .that fact, if it had .been shown, could have had no effect upon the construction of the will.

It seems hardly necessary to add anything to the exhaustive statement of conclusions made by the learned chief justice in his opinion, but it may not be improper for me to add one or two suggestions upon what seems to me to be the only question of difficulty involved in this case.

The rule that the residue of a residue is not increased or augmented in consequence of the failure of a devise of the other part or parts of the original residue, which the testator has expressed an intention to otherwise dispose of, seems to be reasonably well settled, both by principle and authority ; and, if the premises in question' are to be deemed as taken out of the residue by the seventh clause of the will, then they could never, under any circumstances, become subject to the provisions of the residuary clause.

The fact that it is evident that the testator did not intend to die intestate, as to any part of his estate, the fact that it could not be determined, until the death of the wife, whether or not any of the real estate mentioned in the seventh clause