Miller v. Gilbert

testator, on his death, became seised of a vested remainder in fee in said premises, subject only to the life estate of testator’s widow; also that the provision for the sale of said premises at the death of testator’s widow was not an equitable conversion into money, and a gift of personal property at her death, but only a direction and authority for the convenience of division, and solely for that purpose. An interlocutory judgment has been entered in accordance with said findings and conclusions. The appellants the children of Wilbur F. and of Philo B. Gilbert have filed exceptions to said conclusions, and seek to obtain a new trial on said exceptions. Their contention is that, under the will, there was no devise of the lands, but only of the proceeds of sale thereof, which were to be divided among the testator’s children at, and not until, the death of the widow; that there was an equitable conversion of the realty into personalty on her death; that nothing passed under the deed of Wilbur F. Gilbert and under the bankruptcy proceedings against Philo B. Gilbert; and that, as they both predeceased their mother, the testator’s widow, their children are now entitled, on her decease, to take the shares of their respective fathers. It is a fundamental principle in the construction of wills that the intent of the testator is to be determined from the instrument taken as a whole, rather than from isolated or particular phrases; and this rule applies with greater force where, as in the present case, the will was drawn by the testator himself, and the form thereof, and the language and expressions used, clearly indicate that the draughtsman was unskilled in matters of that character. Lytle v. Beverlidge, 58 N. Y. 592 . Applying this rule to the will before us, we are of the opinion that the testator intended to give all his property to his four sons, to be equally divided between them, subject only to the life estate of the widow in the whole thereof, provided she did not remarry; but, in case she remarried, then she was only to have a life estate in one half of the realty, and the other half was to “revert back to my children,” as the testator puts it. We think that a fair and reasonable interpretation of the words “revert back” indicates that the testator assumed and believed that by the preceding language he had already vested his real estate in his children in equal shares, subject to the use thereof of his widow during her life or widowhood. His disposition of his personal estate, furniture, etc., is in the same direction, as well as the legacy of $1-00 to his son Wilbur, “to make him equal with the others.” Nowhere in the will is there the slightest indication on the part of the testator of an intent to create a trust during the life of his widow, or to tie up his property till her death. On the contrary, in the closing clause of his will he directs that, if it should be necessary to sell any part of his realty to pay mortgages or debts, “let it be sold, and the remainder of my property shall be disposed of as aforesaid.” Here, again, the use of the words “ disposed of ” would seem to indicate that the testator assumed that he had effectually devised and bequeathed all his property, and not that he had established a trust during the life or widowhood of his widow, with a gift of the proceeds of the sale thereof on her death. Nor can we see that the use of the words, “or their heirs,” following the names of the testator’s children, works in support of the appellants’ con

tention. Bearing in mind that the testator was unskilled in the use of legal phraseology, those words were, we think, intended to be used to vest his realty absolutely in his children; but, even if they should be construed to be words of substitution, then, on well-settled rules, they should be construed as referring to the contingency of the death of one or more of testator’s children during his lifetime. As all of testator’s children survived him, the words of substitution (if they were such) would be inoperative. The direction given by the testator that on the death or remarriage of his widow his real estate should be sold, was merely a provision for the equal and convenient division of his property.It consisted of three houses and lots incapable of equal partition among his four sons, and the direction for a sale was the simple and natural method of arriving at what each son should be entitled to out of his property. Ample authority for the construction that we have given to the testator’s will is to be found in the cases of Snell v. Tuttle, 44 Hun, 324 ; Goebel v. Wolf, 113 N. Y. 405 , 21 N. E. Rep. 388 ; In re Tienken, 60 Hun, 418 , 15 N. Y. Supp. 470 , affirmed 131 N. Y. 391 , 30 N. E. Rep. 109 . The will construed in the last-cited case contains substantially the same provision as the will in question with reference to the sale of real estate held in trust for testator’s wife, and the division of the proceeds among testator’s children on her death, and the court there held that testator’s children on his death took vested interests in such real estate, subject to the life estate of the testator’s widow. We think that the exceptions should be overruled, and the motion for a new trial, denied, with costs.