In re Whitney's Estate

The claim of the daughter is that her mother, Jennie E. Whitney, only took a life estate under the will of William Whitney with remainder over to her, that the tax has once been paid upon her father’s estate, and the mother’s estate is not sufficient to be subject to a tax; hence no tax is due at this time.

The precise and only question for determination upon this appeal is whether the widow of William Whitney under the provisions of his will took an absolute fee in both his real and personal estate, or whether 'she only took a life estate with remainder over to the daughter. The rule that in cases where the first taker is given the absolute power of disposition of both the real and personal estate the first taker takes a fee as established in Jackson v. Bull, 10 Johns. 19 , Van Horne v. Campbell et al., 100 N. Y. 287 , 3 N. E. 316 , 771, 53 Am. Rep. 166 , and other cases has been limited or qualified by a line of cases that hold that where the power of disposition is not absolute, so as to bring it within the rule, the first taker takes a life estate only. Terry v. Wiggins, 47 N. Y. 512 ; Smith v. Van Ostrand 64 N. Y. 278 ; Wager v. Wager, 96 N. Y. 164 ; Matter of Cager, 111 N. Y. 343 , 18 N. E. 866 ; Crozier v. Bray et al., 120 N. Y. 366 , 24 N. E. 712 ; Rose v. Hatch et al., 125 N. Y. 427 , 26 N. E. 467 ; Leggett v. Firth, 132 N. Y. 7 , 29 N. E. 950 ; Matter of McClure, 136 N. Y. 238 , 32 N. E. 758 .

In Terry v. Wiggins, supra, after a devise in fee of certain property, the will contained a devise of other real estate to the same devisee for her own personal and independent use and maintenance with full power to sell or otherwise dispose of the same, in part or the whole, if she should require it or deem it expedient, and, upon her death, the remainder was devised over to a religious society. It was held that, as to the second devise, the wife took a life estate only.

In Smith et al. v. Van Ostrand, supra, Rapallo, J., in writing the opinion says:

“These cases sustain the proposition that, where an absolute power of disposal is given to the first legatee, a remainder over is void for repugnancy. In Patterson v. Ellis the language of the will was this, that the fund should be at the ‘free and absolute disposal of his daughter after she should attain the age of twenty-one.’ In the other case cited the remainders were held valid, but they recognize the proposition that, if the power of disposition of the first taker is absolute, the remainder over is repugnant. But they also recognize the principle that, if the jus disponendi is conditional, the remainder is not repugnant. Hill v. Hill, 4 Barb. 419 . The power of disposition, if any, in the present case, was only for a special purpose, viz., the support of the widow. If not required for that purpose, there was no power to appropriate the funds to any other. The case of Upwell v. Haley (1 Peere Williams, 651) is precisely in point upon this question. There the testator bequeathed to his sister such part of his estate as his wife‘should leave of her substance. The court say: ‘It is now established that a personal thing or money may be devised to

one for life, remainder over; and as to what has been insisted on, that the wife had a power over the capital or principal sum, that is true, provided it had been necessary for her subsistence, not otherwise.’ The remainder over was held good.”

In this case there is grave doubt whether the widow had any power over the capital or principal sum, so far as disposing of the same is concerned. No express power of disposition is given. The most liberal construction that can be given the will is that he intended his wife to have a life use with the'power of using as much of the principal as might be necessary for her support and maintenance, and, if given such construction, the remainder over to the daughter would not be repugnant, and would therefore be valid.

In Leggett v. Firth, supra, the will of F., after making certain specific provisions for his children, contained the provision:

‘T give devise and bequeath to my wife Ellesheba all the rest and residue of my real estate, but on her decease the remainder thereof, if any, I give and devise to my said children or their respective heirs to be divided in equal shares between them.”

It was held the wife took a life estate only.

In the Matter of McClure, supra, the will of McC., which was drawn by himself, gave to his wife all his real and personal estate, to have and hold with full power to collect rents and income, to keep in repair, pay taxes and insurance with full power to sell such real estate, with the consent of his executors, as she thought best for the estate. Should she remarry again, “then her right of dower only in my estate.” He also gave her discretionary power to give such sums of money to any, as “she may think prudent, of my relatives.” Upon the final accounting several children and grandchildren were living. It was held the widow took under the will only an estate for life, and. as to the re- . mainder the testator died intestate.

It is true the rule which favors the vesting of estates is well established, and the rule in cases where a will admits of two constructions, the one which will disinherit children or lineal descendants and the other would not, the latter should be preferred, is also well estab-. lished.

An intention to disinherit an heir, even a lineal descendant, when expressed in plain and unambiguous language, must be carried out; but it will not be imputed to a testator by implication, nor where he uses language capable of a construction which will not so operate. Low v. Harmony, 72 N. Y. 414 ; Matter of Brown’s Estate, 93 N. Y. 295 . From the language employed by the testator in his will, it is apparent he intended his wife to have a life estate only in his estate, with remainder over to his daughter; hence the daughter takes under her father’s will, and not through the mother, and, as this estate has once paid the tax required by law, it is not subject to a second tax. The mother’s estate without being increased by the father’s estate is not sufficient to be subject to a transfer tax.

For the foregoing reasons, the appraisal of the county treasurer is affirmed.