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Brown v. Perry

64 N.Y.S. 402 Court N.Y. App. Div. Decision date 1900-04-24 English

Delivered by ADAMS, P. J.

Contents

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p. 402
(51 App. Div. 11.)
BROWN v. PERRY et al.
(Supreme Court, Appellate Division, Fourth Department.
April 24, 1900.)

Headnote

Wills—Devise in Fee—Limitation oe Devise—Remainder.
Where testator devised to his wife all his real estate, with power to hold, mortgage, or sell and dispose of the same at public or private sale, “as she may deem best for her own personal benefit and for my children,” such devise was a devise, in absolute fee, and an expression of a parental desire that such children share in the benefit resulting therefrom.
Appeal from trial term, Genesee county.
Action by Ardelle J. Brown against Chastina E. Perry and others to partition real estate. From a judgment in favor of defendants, - plaintiff appeals.
Affirmed.
Argued before ADAMS, P. J., and McLEKNAN", SPRING, WIG HAMS, and LAUGHLIN, JJ.
Frank S. Wood, for appellant.
George Bowen, for respondent Chastina E. Perry.
William West Shaw, for respondent Olivia I. Merritt.

One Samuel Scofield departed this life in the year 1878, leaving a last will and testament, which was subsequently duly probated. By such will the testator made the following disposition of his property, viz.:

“After all my lawful debts are paid and discharged, X give and bequeath to my wife, Laura E. Scofield, all of my personal and real estate of every name and nature, with power to hold, mortgage, or sell and dispose of the same at public or private sale at such times and upon such terms as she may deem best for her own personal benefit and for my children.”

Laura E. Scofield, the widow of the testator, survived her husband until May 12, 1899, when she also died, leaving a last will and testament, by which she gave and' devised all of her property to the defendant Chastina E. Perry. This action is brought to partition a farm of about 25 acres of which Samuel Scofield was seised in fee at the time of his decease; and the sole question to be determined is whether, under the above provision of his will, his widow became the owner of the absolute fee of such premises, or simply of a life estate therein. The record which the appeal brings before us fails to disclose the entire will of Samuel Scofield, and it must consequently be assumed that the clause above quoted is the only provision of that instrument by which any testamentary disposition of the testator’s property is accomplished. Such, indeed, is the plain import of its language; and, this being the case, it necessarily follows that the intent of the testator must be gathered from that clause, unaided by any other qualifying or explanatory provisions. Circumscribed by this limitation, the task which is set before us may be easily performed by invoking two familiar rules of construction, one of which is that an express device can be limited and controlled by succeeding words only where such words are definite and certain in their meaning; and the other requires that, in order to limit a fee, there must be an actual disposition of the same property to some other person or ob

p. 403
ject. Collet v. Lawrence, 1 Ves. Jr. 269; Jones v. Colbeck, 8 Ves. 42; 1 Jarm. Wills, 294; Parsons v. Best, 1 Thomp. & C. 211. With these rules in mind, the first thing to be noted is that the clause we are now construing contains no devise over to any person whatsoever, nor does it, either expressly or impliedly, confer upon any one but the devisee named therein the right to interfere in any manner with the enjoyment or disposition of the estate devised. This omission is significant, for, had the testator intended to give to his wife a life estate only, it is reasonable to suppose that he would have indicated with some degree of certainty the person to whom the remainder should go. But even greater significance must be given to the first part of the clause in question, for by it the testator expressly declares that, after all his lawful debts are paid and discharged, he gives and bequeaths to his wife, Laura E. Scofield, all of his personal and real estate of every name and nature. Assuredly, this language would seem to be sufficiently explicit to indicate an intention upon -the part of the testator to vest his wife with an absolute fee to the estate devised, and therefore it only remains to be determined whether the intention thus expressed is in any sense impaired or qualified by the words which follow, viz.:
“With power to hold, mortgage, or sell and dispose of the same at public or private sale at such times and upon such terms as she may deem best for her own personal benefit and for my children.”

We are clearly of the opinion that it is not. As the owner in fee, the devisee would have the right, in the exercise of her discretion, to make precisely the same disposition of the estate devised as is contemplated by the will, and the provision which it is claimed requires that the testator’s children should share in any benefit which might result therefrom must, we think, be treated merely as the expression of a parental 'desire, and not as a limitation of the devise. Certainly, this language is not sufficiently definite and certain to meet the requirements of the rule to which we have adverted; nor, as we construe it, does it in any wise conflict with the absolute ownership of the property by the devisee. Washbon v. Cope, 144 N. Y. 287 , 39 N. E. 388 ; Benson v. Corbin, 145 N. Y. 351 , 40 N. E. 11 ; Goodwin v. Coddington, 154 N. Y. 283 -286, 48 N. E. 729 . It follows that the judgment appealed from should be affirmed.

Judgment affirmed, with costs. All concur.

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