Jackson ex dem. Hammond v. Veeder — 11 Johns. 169

Majority

p. 169

Jackson, ex dem. Hammond, against Veeder.

NEW-YORK,

May, 1814.

Headnote

V., by his last will, devised his real estate dmfngTer life or. widowhood, to his six sons, mnts'hi’ com-to Ms win defarm «to such °mi1Shisdhe?rs and assigns forever, as shall agree and live mother^vhich ggj i°\vrítin» under her hand and seal signed in the presence of two credible witnesses, with a proviso that the same should serve as part of the portion of such son as his wife should allot the same to, and that his other sons should receive so much land in lieu thereof.”

E., the widow, by an instrument, purporting to be her last will, underhand and seal, executed in. the presence of three credible witnesses, by virtue of the codicil in the will of her husband, 66 devised the farm, 6tc. to V., S and A. three of the sons of V., their heirs and assigns forever, and in case either ot them should die without lawful issue, then to the survivors or survivor of them, binding them, in every other respect, as they were bound by the last will of their father 9 T his was held to jbe a good execution of the power to H. contained in the codicil of the will of V.

jPowers in a court of law, as well as in a court of equity, are to be construed equitably, so as to carry the : eneral intention ot the power into effect.

THIS was an action of ejectment. Johannes S. Feeder, being . . ° seised in fee of the premises in question, by his last will, dated the 15th July, 1746, devised the same to his two sons, Myndert and Simon Feeder, as tenants in common, and died seised. Myndert, the son, being seised in fee of an undivided moiety of the premises in question and of other real estate, by his last will, dated the 7th July, 1754, devised his real estate to his wife, Elizabeth, during her life or widowhood; and out of the rents and profits of which she was to maintain and bring up his children, until they came of age or were married; with remainder over, after the death or remarriage of the wife, to the testator’s six sons, ° Johannes, Volkert, Simon, Abraham, Myndert and Jacob, as tenants in common, in fee. The testator, Myndert, by a codicil to his said will, on the Í9th Scptenéer, 1759, devised the farm then in his possession, and the house, homestead, &c. wherein he

p. 170

dwelt, at Norman’s kill, of which the premises in question were a pgjt, unto such of Ms said sons and his heirs and assigns forever, as shall agree and live lest with their mother, which was to be signified by an instrument in writing under her hand and seal, signed in the presence of two credible witnesses, with a proviso that the same should serve as part of the portion of such son as his wife should allot the same to, and that his other sons should receive so much land in lieu thereof. The devisor afterwards died seised of the said farm, &c. and of other real estate.

Elizabeth, the widow, by an instrument, purporting'to be her last will and testament, duly signed, sealed and published, in the presence of three credible witnesses, directed as follows: “I give and bequeath, by virtue of the codicil annexed to the last will and testament of Myndert Feeder, deceased, dated the 19th September, 1759, unto Folhert, Simon, and Abraham Feeder, (three of the sons named in the last will of Myndert Feeder,) the farm now in my possession, with the houses, &c. and homestead, where I now live in, at the Norman’s kill, to them, their heirs and assigns forever; and in case either of them should die without lawful issue, then to the survivors or survivor of them, binding them in every other respect, as they were bound by the last will and testament of their father, Myndert Feeder.”

S. I. Veeder, one of the devisees of Johannes Veeder, and Folhert and Abraham, two of the sons and devisees of Myndert Feeder, with others, conveyed eleven acres and one quarter, part of the said farm so devised, including the premises in question, to S. M. Feeder, under whom the lessor of the plaintiff claimed. The defendant, Jacob Feeder, now in possession, claimed to hold an undivided part of the premises.

The case was submitted to the court without argument.

The question stated for the consideration of the court was, whether the devise by Elizabeth Feeder to Folhert, Simon, and Abraham Feeder was a good execution of the power contained in the codicil to the will of Myndert Feeder ?

delivered the opinion of the court. The question in this case is, whether there was a due execution by Elizabeth Feeder of the power given her by the codicil to the will of Myndert Feeder. By the codicil the testator devised a

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certain farm, of which the premises in question are a part, to such of his said sons, and his heirs forever, as shall agree and live best with their mother, which was to be signified by an instrument in writing, under the hand and seal of his wife, signed in the presence of two credible witnesses. And he further provides, that the same should serve as a part of the portion of such son as his wife should allot the same to, and that his other sons should receive so much land in lieu thereof. His widow, by an instrument in writing, purporting to be her last will and testament, duly signed, sealed and published in the presence of • three credible witnesses, devised -and directed as follows: “ I give and bequeath, by virtue of the codicil annexed to the last will and testament, of Myndert feeder, deceased, bearing date the 19th of September, 1759, unto folkert, Simon, and Abraham feeder, the farm, &c. binding them, in every other respect, as they were before bound by the last will and testament of their father, Myndert feeder.”

There can be no doubt that the instrument by which the power was attempted to be executed, comported with the directions of the power. It was an instrument in writing, under her hand and seal, and signed in the presence of two credible witnesses, and was intended by. her as an execution of the power, being made with express reference to it.

The point upon which the doubt arises, if any exists, is, whether the designation should not have been to one only of the sons, and not to three. The general rule of law is, that the execution of a power must be according to the substantial intention and purpose of the party creating the power; not restraining . or lessening it by a narrow and rigid construction; nor by a loose and extended interpretation, dispensing with the substance of what was meant to be performed. (Doug. 280. 3 East's Rep. 441.) Powers are to be construed equitably in a court of law as well as in a court of equity. (3 Burr. 1446.) And the general intention must be carried into effect, though it may defeat a particular intent. (4 Term Rep. 87.) Testing the power given in the will before us by these rules of construction, it is evident that the general intention of the testator was to place the farm) of which the premises in question are a part, at the disposal of his wife, to enable her to live comfortably, and command the care and attention of some of

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her sons; for it was devised to such of his sons as should agree and live best with their mother, of which she was to be the judge. If this was the general intent, and she supposed the object best answered by the designation of three, it was within the general object of the power, although the testator might have intended the designation of one only. It would then fall within the rule that the particular must yield to the general intention. The provision was intended for the benefit of the wife, and not for the son whom she should designate, for it was to go as a part of his portion; and his other sons were to receive other lands in lieu thereof. No possible injury could, therefore, accrue to the other sons, whether the designation was to one or more. It is, however, by no means certain that the testator intended the designation to one only of his sons. The grammatical construction will not altogether bear out this interpretation, though it best comports with the probable intention of the testator. This would, however, be too narrow and rigid a construction, to carry into effect the real and substantial object of the power.

The plaintiff is entitled to judgment.

Judgment for the plaintiff.