In re the judicial settlement of Ogilsbie — 30 N.Y. St. Rep. 459

Majority

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In the Matter of the judicial settlement of John S. Ogilsbie and Augustus W. Spinning, as Surviving Executors, etc., of William Hedger, Deceased.^[1]

(Supreme Court, General Term, Fifth Department,

Filed April 11, 1890.)

Headnote

Will—Construction of.

Testator, by his will, gave his property to his wife, for life, and at her death and the division of his property, gave legacies to two grandsons. It then proceeded “ I give, devise and bequeath all my real and personal estate,” except said legacies, to his sons and daughters, “ to he divided between them, share and share alike. Such devises and bequests are to take effect and such division of my estate to he had after the decease of my said wife.” Held, that it was the intention of the testator to vest the whole property in the devisees named, subject to the life estate, and that the shares of those dying before the widow did not lapse.

Appeal from decree of the surrogate’s court of Cayuga county, construing the last will and testament of William Hedger, deceased.

Taber & Brainerd, for app’lts; Vandenburg & Saxton, for resp’ts.

William Hedger died in September, 1873, leaving a will which was admitted to probate. The first clause wills all his property to his wife Jerusha Ann Hedger during her life, and states at the close, “ and it is my will and I desire such farm or homestead be and remain the home of my family after my decease during the lifetime of my said wife, the same as it has been heretofore.”

“ Second. After the decease of my said wife, and at the time of the division of my property as hereinafter mentioned I give and bequeath to my grandson, Truman A. Hedger, of the state of Michigan, the sum of $300.

“ Third. At the time of the division of my estate as aforesaid, I give and bequeath to my son, Charles Hedger, the sum of one hundred dollars, he having already had during my lifetime his proper share of my estate, within that amount.

“ Fourth. I give, devise and bequeath all my real and personal estate of every kind and nature soever and wherever situated, except the above bequests to my grandson, Truman A. Hedger, and my son Charles Hedger, to my sons Thomas D. Hedger, William A. Hedger, my daughters Harriet A. Cogswell, widow of Oscar Cogswell, Mary Bently, widow of Steven Bently, and Margaret Maul, wife of George H. Maul, and my grandson William Cogswell, to be divided between them, share and share alike. Such devises and bequests are to take effect, and such division of my estate to be had after the decease of my said wife, Jerusha Ann Hedger."

The fifth clause authorizes the executors after the death of his wife to sell the real estate and deliver the proceeds of all his prop

p. 460

erty as above directed. John S. Ogilsbie, Augustus W. Spinning and Charles H. Hedger were appointed executors. The wife Jerusha died in May, 1888. Thomas D. Hedger and William. Cogswell, named in the fourth clause of the will, died before Jerusha. In ¡November, 1888, proceedings were commenced by the executors named in the will for a judicial settlement. No controversy arose on the hearing except whether the shares of the persons who died before the wife of the testator lapsed. The surrogate decided that they did not, but that the will vested in those mentioned in the fourth clause the testator’s entire.property, subject to the wife’s life estate. The appellants filed objections to the surrogate’s decision, and appealed from the decree to this court.

So far as those legacies are concerned it was not necessary to vest any interest in the corpus of the property, but to require a payment of the sums mentioned out of the estate; the fourth clause in express terms vests the title in the devisees therein mentioned, subject to the life estate. The last clause in that subdivisin simply fixed the time when the property should be delivered to the devisees named.

The will in its entirety shows that it was the testator’s intention to- vest the whole property in the devisees named in the fourth clause, subject to the life estate; but for more abundant caution he prevented the exercise of any dominion over the property until after the wife’s death, although the same construction would have obtained without this clause. The surrogate correctly construed the will.

The cases cited by the learned counsel for the appellants are not in conflict with the conclusion reached by the surrogate. In Vincent et al. v. Newhouse et al., 83 N. Y., 505 , the will was: “I give and devise to my wife Mercy, during her lifetime, one hundred and sixty-nine acres of land, and I do order and direct at the death of my said wife, the said one hundred and sixty-nine acres of land be sold by my executors and the proceeds divided among the persons named.’’

The court held that the share of those who died before the owner of the life estate lapsed, because the will vested no interest in those entitled to share until after sale of the property. There was no clause in that will vesting title in those among whom the money was to be divided. Their interests would attach to the moneys in the hands of the executors produced by a sale. All the cases rest on the same principle. But here the whole corpus of the estate was absolutely vested by the will, the time of taking-possession and enjoyment being postponed. There, is nothing in the fourth clause limiting the time when the estate should vest in the devisees, but only when they should enter upon its enjoyment. Hopkins v. Hopkins, 1 Hun, 352 ; Black v. Williams, 51 id., 280; 21 N. Y. State Rep., 263; Moore v. Littell, 41 N. Y., 66 ; Shipman v. Fanshaw, 15 Abb. N. C., 288 ; Vanderpoel v. Loew et al., 112 N. Y., 167 -181; 20 N. Y. State Rep., 654, and numerous other cases illustrate the above distinction and show the correctness of the surrogate’s conclusion.

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The decree must be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.