Viele v. Keeler

On the 10th day of July, 1890, the plaintiff, by an instrument in writing, agreed to convey and the defendant to purchase for the sum of $15,000 the undivided half of certain real estate situated in the city of Albany and particularly described in the record. The plaintiff stipulated on his part to execute and deliver to the defendant on or before the first day of September thereafter a warranty deed of the premises with the usual full covenants, which would be sufficient to vest in the defendant ah estate in fee simple absolute, free and clear of all liens and encumbrances. Within the time provided in the agreement the plaintiff duly executed, acknowledged and tendered to the defendant a warranty deed of the premises described in the agreement, which contained all the usual full covenants, but the defendant refused to accept it on the ground that the plaintiff was not the owner of the land described therein in fee simple absolute, and that the deed would not vest title in the defendant. The plaintiff claimed that the defendant was bound to specifically perform his part of the contract and the controversy was submitted upon an agreed case to the General Term, where judgment was directed for the defendant. The only title which the plaintiff had was derived from his wife, Maria Viele, who died in the month of December, 1889, having duly executed her will, which was admitted to probate in the Surrogate’s Court of Albany county, in and by which she devised the lands in question to her husband, the plaintiff. Mrs. Viele was the daughter of Charles D. Townsend, who, it is admitted, was, in his life-time, seized of aq estate, in the lands in question in fee simple absolute. The controversy is narrowed down to the question whether Mrs. Viele took, under her father’s will, an estate for life or in fee. Charles D. Townsend died in Albany in the month of January, 1848, the owner in fee simple of the lot of land described in the contract. He left surviving one son and three daughters, his only children and heirs at law, of whom Mrs. Viele was one. He left a will dated January 28, 1836, and two codicils, all of which were admitted to probate in Albany county. The title of

The second codicil, bearing date in the year 1843, is the only one which in any way affects the title to the premises in question, and so far as material is in the following words:

“ After my said daughters, Helena, Maria and Sarah, shall severally have attained the age of twenty-one years, it is my will that each shall then have and hold all and singular (the real and personal property), severally apportioned to and belonging to her, according to the several clauses and directions of my aforesaid will, for and during her natural life, to her own separate use, and free from all control, etc., of any husband which she may have, with remainder in fee to her child or children and their descendants, and that she and they may have severally the free and uninterrupted enjoyment of their several portions without molestation.

“ It is my will that each of them, if married, do possess and enjoy their respective portions aforesaid as if they wer & femme sole and unmarried.”

The principal question in the case arises upon this codicil. The defendant claims that its effect was to revoke the last paragraph of the will above quoted, whereby power was given to the executors, upon being satisfied that the husbands of the daughters possessed the qualities specified, to convert the life estate into a fee.

In the year 1850, an action to partition the real property of which the testator died seized, including the lands in question, was commenced. The children and heirs at law of the deceased

“ I, John F. Townsend, formerly of Albany, now of Hew York, sole surviving executor of the last will and testament of Charles D. Townsend, late of the city of Albany, now deceased, and now acting in this behalf as executor of the said will, do hereby certify that I am fully satisfied that Maurice E. Yiele, the husband of Maria Townsend, Solomon Townsend, the husband of Helena D. Townsend, and Edward S. Coles, the husband of Sarah Townsend (the three daughters of the said Challes D: Townsend, in his said last will and testament named), are, and that each of their said respective husbands is, capable and prudent in the management of property, and that each one of said husbands of the said respective daughters of said testator does treat his said wife and her family with kindness, and being so fully satisfied of the existence of such traits of character in each of the husbands of the daughters of said testator respectively above named,

“I do, therefore, as such executor as aforesaid, make, sign and deliver to said daughters this written testimonial to that effect, in pursuance of the provisions in said will contained, and intend the same to become operative as is provided in and

If the power conferred upon the executors in the original will was not revoked by the codicil, this instrument vested an absolute fee in the daughters as it had for that purpose all the effect of a conveyance. (4 R. S. [8th ed.] 2475, § 38.)

It is certain that the codicil contains no express words of revocation. If the testator intended to revoke such an important provision of the will as that which vested the fee of the real estate in the daughters, upon the existence of certain conditions to be certified by his executors, it is reasonable to conclude that he would have used appropriate words to accomjilish such a result, and not leave it to construction or ' implication. We have had occasion recently to pass upon the effect of a codicil upon the original will. In that case, as in this, it was claimed that the' codicil revoked an important provision of the will. The language of the codicil in that case was much more favorable to revocation than in this, but we held that it had no such effect. (Redfield v. Redfield, 126 N. Y. 466 .)

There is no irreconcilable conflict and no inconsistency between the language of the codicil and the provision of the will which it is claimed is thereby revoked. Both can stand without doing violence to the language used by the testator. If it is asked what the testator intended to accomplish by the codicil if not a revocation of the provision of the original will referred to, it may be answered that he intended to effect two changes, which were, no doubt, deemed to be important. It will be seen by the terms of the original will that the legal life estate of the daughters’ shares was in the executors. The codicil provided that upon the daughters attaining the age of twenty-one years they should be vested, with the legal title to each share, “ according to the several clauses and directions of my aforesaid will ” for and during her natural life to her own separate use free from the control of her husband. The will and codicil were both executed prior to the legislation in this state in regard to the rights of married women to take and

Anticipating the marriage of the daughters, the testator in the codicil repeated some provisions of the 'will and added some new ones, all calculated to secure the daughters, if mar. ried, in the enjoyment and control of the property to the same extent as if they were unmarried. But neither by words or by implication did the testator manifest any intention to change or modify that provision of his will by which an absolute fee, in a certain event, was to vest in his daughters. He left that important provision untouched, as is manifest from the language used in the codicil. It is a familiar rule that a codicil will not operate as a revocation of previous testamentary provisions beyond the clear import of its language, and that an expressed intention to make a change in a will in one particular negatives, by implication, an intention to alter it in any other respect. (Redfield v. Redfield, supra) So also it is said that a revocation of an earlier disposition of a will by a later one, or by a codicil, on the ground of repugnancy, is never anything but a rule of necessity, and operates only so far as is requisite to give the later provision effect. (Austin v. Oakes, 117 N. Y. 577 , 598 ; Crozier v. Bray, 120 id. 375 ; Taggert v. Murray, 53 id. 233; Pierpont v. Patrick, 53 id. 596.) We have seen that all the language of the the codicil can have full effect without disturbing the special provision of the will under which Mrs. Yiele became vested with an estate in fee simple absolute to the premises in question.

The written testimonial, which -was necessary in order to vest the absolute fee in Mrs. Yiele, was executed by the surviving executor, the others having died. We do not think that the exercise of this power was confined to all the executors named in the will as suggested by the defendants. It is apparent from the nature of the act as well as the express language of the will that the testator intended that the survivor should per

The judgment of the General Term should be reversed and judgment ordered for the plaintiff that the defendant specifically perform the contract.

All concur.

Judgment reversed and ordered accordingly.