Russell v. Furness

The action is in partition and involves the construction of the will of Joseph Furness, late of the town of Oswegatchie, St. Lawrence county, N. Y. He was born in or about the year 1808, and died June 27, 1875. His wife, Margaret Furness, died November 14, 1890. John R. Furness, their only child, born in 1836, married one Rebecca Ann Bush. They had two children, William Joseph Furness, born December 12, 1869, and Lulu Furness, born July 20, 1870. Rebecca Ann died November 4, 1872, and her husband, John R., died March 9, 1873. The said Joseph Furness died seised in fee simple of the real estate herein sought to be partitioned, consisting of a farm of 51 acres and a house and lot in the city of Ogdensburg, N. Y., together worth about $4,000, leaving a last will and testament,dated April 5, 1873, and duly admitted to probate by the surrogate of St. Lawrence county, September 13, 1875. By the first clause, testator directed the payment of his debts and funeral expenses. By the second, he gave all his property to his wife, during her life. The third and fourth clauses are as follows;

“Third. And whereas my only son, John R. Furness, lately departed this life his wife having also died leaving an infant son, William Joseph, and an infant daughter Lulu Furness, him surviving, and it is my will and desire that the said infants shall be brought up by their paternal relatives who reside in the United States of America, and not by the maternal relatives who reside in the Dominion of Ganada, I give, devise and bequeath two equal undivided third parts of all my estate real, personal and mixed which shall remain unexpended at the decease of my said wife to my said grandson William Joseph Furness, his heirs and assigns forever, and the other remaining equal undivided third part thereof to my said granddaughter Lulu Furness, her heirs and assigns forever; and in case one of said grandchildren should die without issue, then the survivor shall have and Jtake the whole of said residue. On condition nevertheless, that my said grandchildren shall respectively observe and conform to my will and desire as above expressed in the third clause of my will. But in case both my said grandchildren shall refuse and neglect

to conform, then it is my will that neither shall take anything under this my will. In case one shall conform thereto and the other neglect and refuse to do so, then it is my will that the one of my grandchildren so conforming shall have and take the whole of said residue which shall remain at and after the decease of my said wife, to have and to hold as aforesaid, and the one so refusing to conform shall take nothing of the said residue as the heir of the other, but on the decease of the one so conforming the said residue shall go as hereinafter provided.

“Fourth. In case both of said grandchildren should die without issue of the body, then I give, devise and bequeath all my property, real, personal and mixed to the following named persons and to their heirs forever, to take per stirpes and not per capita, viz., Alexander Furguson (son of Duncan Furguson), Mary Elizabeth Glinn, Joseph Furness (son of Thomas Furness) who resides in England, Isabella Coats and Mary Smith (daughters of John Furness, deceased, late of Prescott, Province Ontario), Joseph Furness (son of William Furness of Auburn, N. Y.), George Furguson (son of Duncan Furguson), Margaret Rodgers and Caroline Russell (daughters of Robert Rodgers) to be equally divided between them, share and share alike.”

One of the persons named in said fourth clause was a cousin of testator, and the others were nephews and nieces, either of the testator or of his wife. The latter, one Duncan Ferguson and one John McCall, were named executors. William Joseph Furness and his sister, Lulu Furness, observed and conformed in all respects to the will and desire of their grandfather. They were brought up by their paternal relatives in the United States, and not by their maternal relatives in Canada. Lulu died January 18, 1885, unmarried and without issue. William Joseph thereupon took possession of testator’s property and received and retained all the rents, issues, and profits thereof until his death. He married Harriet E. Vreeland August 21, 1907, and died January 17, 1911, without issue, leaving his widow, defendant Harriet Vreeland Furness, him surviving, and leaving a last will and testament, dated April 6, 1909, duly admitted to probate March 8, 1911, in and by which he gave all of his property to his wife, Harriet Vreeland Furness, absolutely. Plaintiff, one of the devisees named in the fourth clause of the will of Joseph Furness, has brought this action for the partition of said real property, claiming an interest therein under and by virtue of said fourth clause and has joined Harriet Vreeland Furness, the widow of William Joseph Furness, testator’s grandson, and the other persons named in said fourth clause, as parties defendant. Harriet Vreeland Furness has answered and claims absolute ownership of the property under the will of her husband.

[1, 2] The solution of' the case depends upon the answer to the question whether the testator in making the devise or devises over, which he made, in case either or both of his grandchildren should die without issue, referred to a death without issue in his own lifetime, or at any time. It is a general rule of construction, where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death without issue, that the words refer to a death without issue, in the lifetime of the testator, and that the primary devisee surviving the testator takes an absolute estate in fee simple. Vanderzee et al. v. Slingerland et al., 103 N. Y. 47 , 55, 8 N. E. 247 , 57 Am. Rep. 701 . This rule is applied even in cases where there is a precedent life estate. Livingston v. Greene, 52 N. Y. 118 ; Embury v. Sheldon, 68 N. Y.

[3] We are thus brought to the question of the intention of the testator in this case. He was 65 when he made his will. It was made about three weeks after the death of his only son, whose wife had died about four months before. Their children, one three and the other four, were testator’s only living descendants. His wife was living. After directing the payment of his debts and funeral expenses and after giving his wife a life estate in all of his property, he divides same into two parts, giving his grandson a vested fee in two-thirds and his granddaughter a vested fee in one-third, subject to be defeated by either one of two contingencies: First, death without issue; and, second, refusal to comply with his wishes, as expressed in the will, with regard to their training. The will does not, in terms, provide that the issue, if any, of the grandchildren, shall take, in case of their death leaving issue, but that is the only reasonable inference. Bradhurst v. Field, 135 N. Y. 568 , 32 N. E. 113 ; Matter of Cramer, supra. This construction does not, at least necessarily, create a clash with the statute against perpetuities and the other construction might furnish a case of intestacy. And testator does not define whether he intended a death without issue in his lifetime, or at any time, so that the rule above stated should be applied, if his intention in this respect is not otherwise indicated, or if there are no circumstances, which require that the language of the will be construed according to its natural import. The law favors the vesting of devises and bequests as soon as possible after the death of a testator. Riker v. Gwynne, supra.

[4] And it is the presumption, in the absence of unfriendly relations, that a testator had the desire and intent that his property should go to his descendants, rather than to collaterals. March v. March, 186 N. Y. 99 , 78 N. E. 704 , 8 L. R. A. (N. S.) 180 . The provision for the grandchildren is preceded by a preamble, introduced by the customary “whereas,” which recites the facts of the deaths of their parents and states that it is testator’s will and desire that they be brought up by their paternal relatives in this country, and not by their maternal relatives in Canada. This is significant. In effect, it states a desire on his part that he himself and his wife should, so far as possible, take

The second of the contingencies, namely, refusal to comply with the wishes of the testator, as expressed in his will, is of importance only as it may throw light on his intentions, for the reason that his grandchildren did comply. It is urged by plaintiff that the taking by each is conditioned upon arrival at mature years in the custody of their paternal relatives, and that this was a consummation which testator could not reasonably expect to see. He states that it is his will and desire that his grandchildren be brought up by their paternal relatives in this country and not by their maternal relatives in Canada. He does not define his meaning. He was a farmer, with a small farm and in modest circumstances, so that it seems doubtful whether he intended to provide for their control until they attained full age. Moreover, whether his wishes were to be complied with, or not, was a matter which would be determined long before they attained full age. In any event, as stated before, his age was such that the inference is not unreasonable. It should be noted in this connection that the will makes no provisions for the disposition of the property, in

Findings may be prepared accordingly.