Grim v. Dyar — 10 N.Y. Super. Ct. 354

Majority

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William Grim and Six Others v. Harrison G. Dyar.

Headnote

J. D., by bis last will and testament, devised all his real estate to his five children, named as tenants in common, in fee, with.a lien over to the survivors in case either of his children “ should die under age, or married leaving no lawful issue.”

Semble, that the word “ or” should be construed “ and,” so as to confine the limitation oyer to the event of a child dying without issue, under age.

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Held, that it was not necessary to decide this question, as the claim of the plaintiffs to the premises in question was clearly barred by an adverse possession of more than twenty years.

(Before Oakley, C. J., Campbell and Bosworth, J.J.)

May 8, 20, 1854.

The action was brought to recover the possession of one-sixteenth part of three lots of ground in the city of New York,, in. Houston street, and one in Broadway. The plaintiffs claimed title as the heirs-at-law of one Catharine Corbett,.deceased.. The defendant in his answer denied the title, and, as a bar to the recovery, set up an adverse possession of more-than twenty years.

The following are the material facts, as they were- admitted by the counsel of the parties upon the trial:—

John Dyckman, the elder, died' seized- of the premises in question, in the month of July,, 1793.. He left five children surviving him: First, Catharine, then- the wife of Peter Grim, jr., and after his death married to Zachariah Corbett ;• second, Rebecca, then the wife of John Yreelandt; third,. Teunis E.; fourth, Matthew; fifth, John-;' all of whom were of full' age before the death of their father.. Under the provisions of 'the last will of the father, all the estate,, of which he died seized, vested in the children, as tenants- in common, in fee, immediately upon his death. Upon a partition made between them, shortly after the death of their father, the premises in question became the property of Catharine, Rebecca, Teunis, and' John, and by them (the husbands of the daughters uniting) were conveyed in fee in September, 1793, in part to William Sloo, and1 the residue to Anthony Smith, and from those grantees the defendant, by sundry mesne conveyances, derives his title. The-actual possession from the year 1793 has been in conformity to the successive conveyances.

Peter Grim, the husband of Catharine, died in 1798. She afterwards married Zachariah Corbett, who died in 1813. She-died herself in December, 1849. Rebecca died, without leaving issue, on the 11th September, 1830.

The plaintiffs are the children and grandchildren, and as such the heirs-at-law of Catharine Corbett. They found their claim to recover, in consequence of the death of Rebecca without issue, upon the construction given by their counsel to the

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following clause (the fifth) in the will of John Dyckman, the ancestor:—

“ Item, it is my will and pleasure, and I hereby order and direct, that in case either of my children should die under age, or married leaving no lawful issue, that then, and in such case, the part of him or her so dying shall go to the survivors, their heirs, and'assigns for ever, to be equally divided between them," &e.

By consent a verdict was rendered for the defendant, subject to the opinion of the court at General Term.

The counsel for the parties now submitted the casé upon their printed points.

C. W. Sandford for plaintiffs.

I. Catharine Corbett, upon the decease of Rebecca Yreelandt, her sister, who died married, leaving no lawful issue, became seized, as tenant in common, of one equal tenth part of the premises in question, under the fifth clause of the will óf her .father. 1. The limitation over is made to take effect upon the contingency of either of the children dying under agé, leaving no lawful issue, or dying married, leaving no lawful issue. 2. This construction gives effect to all the words used, and is rational in itself, and consistent with every other part of the will, and with the situation of the testator’s family. ’ (5 Barn. & Ald. 917.) 3. This is the natural and proper sense of the words used, and there is nothing in the clause, nor in any other part of the will, to require or authorize the rejection of the disjunctive sense of the word “ or.” (Woodward v. Glassbrooke, 2 Vern. 388 ; Roosevelt v. Thurman, 1 Johns. C. R. 219, 228.) 4. The rule of construction by which the courts have in some cases changed “ or” into “ and,” has no application to the present will, (a) The rule is-confined to cases where an estate of inheritance is devised to a person with a limitation over, depending on his age or issue; and is adopted to effectuate the general intent of the testator, and because otherwise if the first taker should die under age, though leaving issue, such issue would be disinherited; and to cases of the like nature. (Fairfield v. Morgan, 2 Boss. & Pull. 38 N. R.; Jackson v.

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Blan, 6 Johns. 54 ; Haunus, lessee, v. Shuts, 2 Binn. 532 ; 1 Powell on Devises, by Jarman, 375, 5th Law Lib.) (i) In the present case the limitation depends on the failure of issue, with the additional circumstance of dying under age or married. The failure of issue being the leading contingency, the case is not within the reason of the rule, (c) If “ or” in this case is changed into “ and,” the word “ married” will be rendered nugatory, and the intent of the testator to preserve to his family the share of a son or daughter who might be married and die without issue, be defeated, (d) It would also defeat his intent, if any of his children died under age and unmarried, (e) The rule in question is not to be extended to any new class of cases, unless absolutely necessary to effect the intent of the testator. (Douglas v. Eyre, Gilpin, 148 ; Bos. & Pul. 51.)

., II. The deed executed by Mrs. Corbett with her husband, passed no greater estate than she then possessed, and cannot operate against her by way of estoppel, to prevent her taking the, estate which descended to her upon the death of her sister. (Jackson v. Vanderheyden, 17 Johns. R. 167; 3 Paige C. R. 471; 2 Kent’s Com. 149, 168 ; 2 Ves. Junr. 676; Pellerteau v. Jackson, 11 Wend. 110 ; Martin v. Develly, 6 Wend. 13 .)

HI. The plaintiffs being tenants in common with the defendants, and holding under the same title, there is no adverse possession.

C. A. Shermam for defendants.

L. Rebecca, daughter of John Dyckman, having attained the age.of twenty-one years, had a fee simple estate in the property in question, which was not divested by her dying without issue, and she lawfully, after she came of age, conveyed the lots in question to William Sloo and Anthony Smith, in 1793, as before stated. The fee was contingent only upon her dying under age, and if under age, without issue. The settled construction of the words contained in John Dyckman’s will, “ under age, or married leaving no lawful issue,” is that the contingency ceases on the happening of either event, to wit, attaining twenty-one years, or leaving issue. (Jackson ex dem. Burhans and wife v. Blanshaw, 6 Johns. R.; 54 Jarman on Wills, vol.

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i. 416, &c. (2d Am. ed. 1849); Hilliard’s Abdgt. vol. ii. 520 and 521, chap. 41, §§ 13, 14, and 15, and cases cited.) In sup port of this position many other cases may be cited, of which the following are a part:—Barker v. Surtees, 2 Stra. 1175; Walsh v. Peterson, 3 Atkin. 193; Framlingham v. Brand, Cruise Digest, vol. vi. 131, and cases there cited (Am. ed.).

H. The plaintiffs are barred also by the statute of limita-' tions. 1. The defendant and those from whom he claims have been in possession under conveyances since 1793. (See R. S. vol. ii. 293, §§ 5, 8, 9, and 10.) 2. The plaintiffs are not within any of the exceptions of the statute. Rebecca Yreelandt died September 11, 1830; Catharine Corbett, her sister, could then have brought suit, if she could not have done so before; she1 was under no disabilities. But suit was not brought till the year 1853, nearly 23 years thereafter.

We think that we should be fully justified, by a long series of decisions, in holding that, in order to carry into effect the apparent intent of the testator, the word “ or,” in the fifth clause of the will, must be construed “ and,” so as to make the limitation over depend upon the contingency of the death of one or more of the children under age, without issue then living. The construction of the plaintiffs’ counsel, in effect, expunges the words “ under age” from the will, for supposing the testator to mean that the limitation over should take effect upon the death of any of the children without issue, whatever might be the age of the person so dying, the words “ under age” are plainly senseless. Had such been his meaning we cannot think that they would have been used. It is true that the word “ married” creates some perplexity. It embarrasses a construction that otherwise we could not hesitate to adopt, yet we cannot believe that the testator meant that marriage should have the effect of making an estate defeasible that otherwise would be absolute. Such, however, would be the necessary consequence of holding that the word “ married” was used to denote an alternative contingency. Oh the other hand, it is just as difficult to believe that he meant that the share of a child dying under age, and without issue, ■should, go over, if he were then married, and not otherwise.

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Upon either construction, retaining the word “ or,” or' substituting “ and,” marriage, if any effect is to be given to the word “married,” is made a necessary condition of the limitation over. It is hardly possible that this could have been the intention of the testator, and hence, in order to give any reasonable interpretation to the clause of limitation, it seems that the word “ married” must be stricken out entirely. We think that the share of the child dying without issue should go to the survivors, whether the child should be married or unmarried at the time of his or her death, and that he probably meant that the limitation over should only take effect, in the event of such a death, during the minority of the person dying. And were it necessary it is this last construction that we should be inclined to adopt.

It is not necessary, however, nor do we mean to place our decision upon this ground, since we are all of opinion, that, adopting the plaintiffs’ construction of the clause of limitation, their claims, as the heirs-at-law of Mrs. Corbett, are effectually barred by the adverse possession, which is shown to have continued without interruption for more than twenty years prior to the commencement of this action. In 1830, when her sister Rebecca died, without issue, Mrs. Corbett was under no disability. She had then, if at all, an immediate right of entry, that she might then have enforced by suit. The statute, therefore, then commenced to run against her, and as nothing has since occurred to suspend its operation, the statutory period was more than completed when this action was brought. Hence it has perfected the title of the defendant, and raised a full bar to a recovery by the plaintiffs.

It is true, as a general rule, that the possession of a tenant in common is not considered to be adverse, since in judgment of l$w the possession of one such tenant is the possession of all, but the rule is not applicable when there is sufficient evidence of an ouster of the co-tenants; and in the case before us we think that the evidence of an ouster, setting the statute in motion, is not merely sufficient but conclusive. During the whole statutory period there has been an exclusive possession, an exclusive reception of rents and profits, and an exclusive claim of title. The defendant, and all those from and through whom

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he derives his title, from the year 1793, have held the possession under deeds which, in terms, gave to them in succession an absolute fee, and nothing has been shown to shake the legal presumption that they have all claimed the title which their deeds purported to convey. There are other difficulties in the way of a recovery by the plaintiffs in this case, to which,- as they seem .to have been overlooked by the counsel of the parties, we deem it unnecessary to advert; we mention the iact merely to repel an inference that might otherwise bé; drawn from our silence. It. is sufficient now to say that the defence of an adverse possession, which, by force of the statute, bars a recovery, has, in our opinion, been fully established.

Judgment, upon the verdict, must be entered for the defendant with costs.

Cases cited

Jackson ex dem. Burhans v. Blanshan 6 Johns. 54 N.Y. Sup. Ct. p. 357