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The testator left him surviving his widow, three sons, and one daughter, who were his sole heirs at law and next of kin. One of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; the widow, died September 22, 1904, a little over four years after the death of her son, the father of the plaintiff.
At the time of the testator’s death his children were under age and unmarried. The testator died seized of certain real estate in the states of New York, New Jersey, and Vermont. The plaintiff brought this action to partition lands in the county of Kings in this state, asserting she had an interest therein for the reason that under the terms of the will of the interest of her father, one of the remainder men, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, under the will. The trial justice decided in favor of plaintiff. The judgment entered upon that decision was reversed by the Appellate Division, and the complaint dismissed. Plaintiff and her sisters, defendants, appeal to this court.
The provisions of the will material to be considered here are as follows: ‘Second. All the estate real and personal of whatsoever name and description which shall belong to me at the time of my decease and the rents, issues, income and profits thereof, I give devise and bequeath to my wife Ann during her natural life in lieu of all her dower share thirds or portion of my estate, and on her death I give devise and bequeath the same to my children equally share and share alike, the descendants of any deceased child to take the share which his or her deceased parent would take if living. And I hereby authorize and empower my said wife as executrix of this my will to sell and convey any and all my real estate whosesoever the same may be situated at public or private sale as she may deem proper and to receive and invest and call in and reinvest the proceeds thereof, and the income thereof for the benefit of my estate and it is my wish and direction that as soon as it can be done consistently with the interest of my estate that my real estate be so sold and invested to raise an income for the support of my said wife and my children. And all real estate which I may own in common with my brother or any other person I authorize my said executrix by agreement with my cotenant or cotenants by deed or otherwise to make partition thereof among the owners, so that my share or interest therein may be held by my said executrix, and managed and sold and disposed of in severalty as part of my estate.’
‘Fifth. And as to all my real estate and property situated and being in the state of New York, I hereby appoint of the city of Brooklyn, in the state of New York, United States Judge, special executor of this my will, with full power by and with the consent of my said wife to be manifested by her signing the deed or deeds with him to partition or sell and convey the real estate or any portion thereof, and to receive the proceeds thereof, and to pay the same to my said wife my general executrix as aforesaid for the purposes of this my will.’ In the fourth clause of the will in substantially the language used in the fifth clause above quoted, the testator appointed of Plainfield, N. J., as the executor of his will as to all property in that state.
By the sixth clause of the will the testator authorized and directed his special executors from New York and New Jersey to pay over to the general executrix under letters testamentary issued in the state of Vermont all the proceeds of his property collected or received by them respectively.
The codicil executed by the testator October 28, 1868, was as follows: ‘It is my wish that each of my sons shall receive a collegiate education and also such professional or business education as they shall respectively desire, and also that my daughters shall be thoroughly educated and it is my will and I hereby direct that if in the judgment and discretion of my wife, in order so to complete the education of my children, and to provide for the other necessary expenses of the family, and for her own support the rents, income and profits of my estate shall be insufficient, then my said wife shall from time to time at her discretion use and expend for the purposes aforesaid so much of the principal of my estate as she may find necessary for such purposes.’
By the earlier provisions of paragraph second of the will above quoted was given an estate for life in all of the real and personal estate and the rents, issues, and profits thereof belonging to the testator at the time of his decease to begin in possession at the time of the death of the testator. The testator fixed a definite time ‘upon the death’ of his widow, the life tenant, when his children should succeed to the estate in equal shares, and in addition it was his will that ‘the descendants of any deceased child to take the share which his or her deceased parent would take if living.’ Thus we have a life estate devised over upon the death of the life tenant to the children and a devise to the descendants of a deceased child at the termination of a life estate. The language employed in the will operated to create a substitutional gift in favor of the children in the event of his death during the lifetime of the life tenant.
Counsel for respondent argued that the will in question discloses the intention of the testator so clearly that an inspection of the same requires a construction in favor of his client, Consumers’ Park Brewing Company, to the exclusion of appellants. Reading the will and considering the relevant facts and circumstances in connection therewith I reach a contrary conclusion. In a portion of the second paragraph of the will, which has not heretofore been considered, the testator empowers his wife, as executrix, to sell and convey any and all of his real estate whosesoever the same may be situate, and all real estate which he might own in common with his brother or any other person by deed or otherwise to make partition of the same.
By the early provisions of the same paragraph he gave to his wife the rents, issues, and profits of his estate during her life only, and upon her death he devised and bequeathed ‘the same,’ i. e., the real and personal estate, and the income and profits to his children. The power of sale did not give to the widow any additional interest in the estate, as the testator provided that the proceeds of any sale, whether of lands solely owned by him or in common with others, was to be received by her as executrix and to be invested and the income therefrom ‘for the benefit of my estate.’ He further directed that as soon as the same could be done consistently with the interest of his estate that his real estate be sold, not for the benefit of his widow or to enable her to take the proceeds thereof for her individual use, but, on the contrary, ‘to raise an income for the support of my said wife and my children.’
The power of sale in the second paragraph of the will must be construed in connection with the fifth clause of the will, wherein Judge was appointed special executor of the estate, real and personal, in the state of New York, with power to sell all real estate by and with the consent of the widow as well as to partition real estate and to receive the proceeds from such sales and pay the same to the executrix for the purposes of the will.
Other relevant facts and circumstances appear by the will. The codicil executed soon after the date of the will contains words of limitation. While the testator expressed a wish that his children should be thoroughly educated, and empowered his wife in her discretion to resort to the principal if necessary to complete their education and to provide for other necessary expenses of the family in the event that the income was insufficient for that purpose, the power thus conferred was limited in three several particulars: (1) Lack of sufficient income; (2) to be exercised not at one time, but ‘from time to time’; (3) to ‘so much only of the principal as she may find necessary for such purposes.’ As I construe the codicil the manifest intention of the testator was that the principal of his estate, or at least so much of the principal as was not necessary in addition to the income for the support of the family and the education of the children, should be preserved intact for the benefit of his children after the termination of the life estate, or, in the event that one or more of such children should die leaving children, then for the benefit of such children. This view is strengthened by the fact that at the time of the execution of the two instruments the children of the testator were unmarried and attending school. The testator while expressing solicitude that his children should be properly educated had in mind the possibility of the death of one or more of his children leaving a child or children him or her surviving, and while providing for his own children he also sought to provide for the children of a deceased child. The terms of the will and the circumstances to which attention has been called clearly indicate the intention of the testator consistent with the conclusion I have reached.
Under the second and fifth clauses of the will a power of sale was vested in two donees, the executrix and the special executor. Such was the clear intention of the testator. Otherwise why should he appoint a special executor in this state, clothe him with power of sale, and require his wife to join in a deed with him if he intended to confer upon his wife authority to execute the power alone? If it were the intention of the testator to vest in his wife a sole power to sell lands in the state of New York, it was a fruitless proceeding on his part to appoint a special executor in New York and clothe him with power of sale or partition of real estate in this state. I cannot attribute to him an intention to adopt such a useless formality. On the contrary, I conclude that the intention of the testator was that the power of sale of land in this state was to be exercised, not alone by the executrix under the will, but by the special executor of the will in this state in conjunction with her. The deed to Lowell did not convey the interest of the children of the plaintiff and defendant appellants in this action.
Accordingly, the court held that the order and judgment of the Appellate Division should be reversed, and the judgment of the Special Term affirmed with costs in Appellate Division and this court to appellants.
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