Majority
Headnote
1. Will—Construction of Bequest.Where by the terms of a will a devise or bequest is made to A., followed by a second provision that, in case of the death of A. without issue, the property devised or bequeathed shall go to B., the “death without issue” referred to is death during the
As Mrs. Gragg did die without children, one-half of the estate went to the heirs of the deceased. As to the $1,000 legacy, it was clearly a charge upon the land devised. Colvin v. Young, 81 Hun, 116 , 30 N. Y. Supp. 689 ; Towner v. Tooley, 38 Barb. 598 ; Harris v. Troup, 8 Paige, 423. Although title to this legacy was at one time acquired by Mrs. Gragg, there was no merger, because there was never united in her the sole interest in the entire estate. Nor were any rights under this legacy barred by the statute of limitations. They would have been so barred except for the "fact that interest was paid thereon until 1900. Ordinarily such payments bind only the one making them, or those thereafter succeeding him in title. As a general rule, a payment of interest by Mrs. Gragg would prevent the running of the statute only as against herself and her property, not against the others having a vested interest in the same estate. Murdock v. Waterman, 145 N. Y. 55 , 39 N. E. 829 , 27 L. R. A. 418 ; Insurance Co. v. McNeely, 166 Ill. 540 , 46 N. E. 1130 .
It may well be, however, that in this case the payments were directed by the testator; that they were made by his wife in pursuance to these directions, and would bind any one having any future interest. Yet, as it may be claimed that only the first 10 payments were made by such direction, and that subsequent payments of interest were simply by way of damages for failure to comply therewith, I prefer to rest my decision on another proposition.
While I find no authority for it, I am of the opinion that the rule does not apply where a contingent estate is created. In such a case convenience requires that the person entitled to the immediate estate should be considered the representative of all interests, and that his acts should, to some extent, at least, and except as limited by the real property law, bind those who may possibly become interested
The present owners of this legacy gained title through Mrs. Gragg. Their claims are limited by what hers might have béen. It appears that at one time she received $525.40 from the personal estate of the deceased-—the primary fund for 'the payment of this legacy—to apply on the same. She either so used it, or should have done so. In either event, neither she nor her representatives can be heard to say that this application was not properly made. It was her duty also to pay the interest on this legacy down to time of her death. The amount thereof which may now be charged against the real estate, therefore, is only $474.60, with interest thereon from March 3, 1904.
Findings in accordance with this opinion may be prepared, and, if not agreed upon, will be settled upon proper notice.
Ordered accordingly.
Cases cited
- Towner v. Tooley 38 Barb. 598 p. 55
- Murdock v. Waterman 145 N. Y. 55 p. 55
- Brevoort v. Brevoort 70 N. Y. 136 p. 56
- Eagle Fire Insurance v. Cammet 2 Edw. Ch. 127 p. 56