
    Mary E. Gross et al., Plaintiffs, v. Addison G. Mathewson, Individually and as Executor, Etc., of Jane Eliza Mathewson, Deceased, Defendant.
    (Supreme Court, Erie Special Term,
    March, 1901.)
    Devise — Fee when not cut down.
    A devise of an absolute fee is not cut down by subsequent words of the will inferentially reducing the fee to a life estate with power to the life tenant to alienate during life.
    
      Actioh" by plaintiffs as heirs of law of Jane Eliza Ifathewson to have a clause in her will, devising all her property to her son Addison G., declared void and to have it declared that she died, intestate.
    The defendant has demurred to the' plaintiffs’ complaint on the-ground that it does not state facts sufficient to constitute a cause of action.
    Delvert A. Adams, for demurrer.
    Shire & Jellinek, opposed.
   Hooker, J.

The only question presented by this demurrer is whether an absolute fee or simply a life estate with power to alienate during life is granted to defendant’s testatrix by the following clause in the will of the father of such testatrix, to-wit: “ I give, devise and bequeath unto my daughter Jane Eliza Mathewson * * * the undivided one-fourth part of all the property and estate, real and personal, of which I die seized and possessed; the rents and profits, use, interest and income thereof, and on her death whatever may remain of said property, principal, interest or income unexpended by the said Jane Eliza, I give, devise and bequeath to the children of her body, alive at the time of her decease, in equal shares; * * * And it is my will that the said Jane Eliza shall use, dispose of or expend so much of the said property, and estate, real and personal, use, income, and interest as she may choose during her natural life.”

That a testator may devise his property to a person during life, giving such person an additional power of disposal without enlarging the estate to a fee is well settled. Terry v. Wiggins, 47 N. Y. 512; Thomas v. Wolford, 49 Hun, 145.

The testator’s intention is to be ascertained if possible, and will control. Such clauses in wills have frequently received the consideration of the courts in this jurisdiction and it is well settled tiiat when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words, inferential in their intent. Clarke v. Leupp, 88 N. Y. 228, 231; Banzer v. Banzer, 156 id. 429, 435.

The Court of Appeals held also in Goodwin v. Coddington, 154 N. Y. 283, 286, that whenever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention in that direction as the prior part does to make it.

Applying this rule to the clause in question it is at once clear that the will begins with an absolute gift, to-wit, “ I give, devise and bequeath unto my daughter * * * the undivided one-fourth part of all the property and estate, real and personal, of which I die seized and possessed; ” and here the testator finishes such absolute gift with a semi-colon. This cannot be construed otherwise than as an absolute gift of the fee; under the rule, the subsequent words must show as clear an intention to cut down this absolute fee, as the words quoted show an intention to give it. The most favorable reading of the balance of the clause cannot hold it to be more than inferential in its intent.

In fione of the cases cited by the plaintiffs does the will begin with words of absolute gift. Thus in Terry v. Wiggins, 47 N. Y. 513, 515, the property was given “ for her own personal use and maintenance,” and the court says at page 515 that such a use must necessarily terminate at death. In Thomas v. Wolford, 49 Hun, 145, the property was given “ during her lifetime.” And in Wells v. Seeley, 47 Hun, 109, it was given “ to be held and used by her as she shall see fit and proper, during the full term of her life.” It seems unnecessary to determine whether Smith v. Bell, 6 Pet. 68, cited by the plaintiffs, support their contention in the face of the pronounced trend of the later decisions of the court of last resort in this State.

The demurrer should be sustained, with costs.

Demurrer sustained, with costs.  