
    Peter T. Masterson, Resp’t, v. John Townshend et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    Will—Construction of—Devise by implication.
    William Masterson, by his will, gave an undivided one-half interest in certain real estate to his executor in trust to collect the rents, issues and profits, and to pay over $600 to his wife so long as she remained unmarried, “and the balance of said rents and profits my executors shall pay to my said brother, Peter Masterson; but if, in the discretion of my said brother and my said executor, it should be ckemed advisable to sell said real estate, then m/ said executor is hereby authorized to unite in a sale of said premises, and is hereby empowered to execute all needful conveyances for that purpose, and from the proceeds of such sale pay to my wife the sum of six hundred dollars annually as long as she remains unmarried, and upon her marriage, or death before marriage, then all of said proceeds are to be paid to my brother, Peter Masterson.” Held, that this was a plain case of a devise by implication, whereby, upon the death of testator, his brother, Peter, became vested with the title to the real estate, subject only to the trust provision made for the testator’s widow.
    Appeal from judgment of the New York superior court, general term, affirming interlocutory judgment overruling a demurrer to the complaint entered upon an order for such judgment.
    This was an action of ejectment, and the complaint, after alleging the seizure of certain real estate by William H. Master-son and Peter Masterson, as tenants in common, sets forth William’s death and the devise in his will of the property to his executor upon a certain trust during his wife’s life or widowhood. It alleges that no other disposition of the premises was made and that the widow has remarried. It is made to appear that testator left no children and that plaintiff is one of his heirs at law, and as such he claims to be seized of a certain undivided interest in the property and to be entitled to an immediate possession thereof.
    The defendants demurred to the complaint as not stating facts sufficient to constitute a cause of action, but plaintiff had judgment overruling the demurrer; upon which a final judgment was entered, and the general term of the superior court of the city of New York have affirmed that judgment. The defendants thereupon appealed to this court.
    
      Theron G. Strong, for app’lts; George Wilcox, for resp’t.
   Gray, J.

In order that plaintiff’s right to the possession of the premises in question and to the relief he demands shall appear well founded in law, Jiis complaint must disclose, on its face, such a state of facts as that their admission by the defendants’ demxxrrer would leave but the legal conclusion to be drawn in his favor. For some undisclosed reason the case below was treated and disposed of as though by the demurrer the allegations of the complaint as to the legal conclusion of a title and interest in the jilaintiff were substantially admitted, and the testamentary devise, which lies at the foundation of plaintiff’s claim of title, apparently went without interpretation or consideration. To the defendants’ contention here that the heirs at law of testator have taken no title under the devise in question, the plaintiff replies that they are precluded from occupying that position, inasmuch as “ all the allegations of the complaint are admitted by the demurrer.” Of course there is nothing in such a reply; for by the demurrer no admission is made save as to such relevant facts as were well pleaded. There could be no admission by that pleading of any legal conclusions, or of any interpretation placed by the plaintiff upon the devise.

The question therefore presents itself as to what was the effect of the devise upon the title to the real estate of which the testator died, seized.

The devise is stated at length in the complaint in the following words:

“Third. I hereby devise and convey all my undivided one-half interest in the lot of land and appurtenances situate on the corner of Fifty-fourth street and Seventh avenue, in the city of New York, now owned by me and my brother, Peter Masterson, jointly, in trust to my said executor to collect the rents, issues and profits of the same and pay over $600 thereof to my wife so long as she remains unmarried, and the balance of said rents and profits my executors shall pay to my said brother, Peter Masterson; but if, in the discretion of my said brother and my said executor, it should be deemed advisable to sell said real estate, then my said executor is hereby axrthorized to unite in a sale of said premises, and is hereby empowered to execute all needful conveyances for that purpose and from the proceeds of such sale pay to my wife the sum of $600 annually as long as she remains unmarried, and upon her marriage, or death before marriage, then all of said proceeds are to be paid to my brother, Peter Masterson.”

As the widow has remarried, the argument of the plaintiff is that the trast created by the will thereujDon ceased, and that there was no testamentary disposition made of this estate after the happening of that event. He claims therefore that it has reverted to the heirs of the testator, of whom he is one. In that view we are unable to agree with him. •

This is a plain case of a devise by implication, wherebyi upon the death of testator, his brother, Peter, became vested with the title to the real estate, subject only to the trust provision made for testator’s widow. However incomplete the language tó express the purpose of the testator, an intention and an understanding on his part are evident that his brother, Peter, should take as devisee the property which was the subject of disposition in that clause. What the testator has imperfectly done, by way of expression, is effectuated by the application of well known legal rules. In the construction of a testamentary disposition, where the language is unskillful or inaccurate, but the intent can be clearly collected from the writing, it is the duty of the court to give effect to that intent; subject only to the' proviso that no rule of law is thereby violated. 1 R. S., 748, § 2; Purdy v. Hayt, 92 N. Y., at p. 454. Courts have, from an early Cay, repeatedly upheld devises by implication, where no gift of the premises seems to have been made in the will in formal language. Goodright v. Hoskins, 9 East, 306; Jackson v. Billinger, 18 Johns., 368; Matter of Vowers, 113 N. Y., 569; 23 N. Y. State Rep., 715. They are justified in so doing whenever such a construction expresses what the testator manifestly intended to express. The presumption here of a devise to Peter by implication is so well founded as to make it one which is free from doubt in the mind. The facts which are disclosed to us combine to raise it. There is the gift of all of the rents and the profits of the land to the testator’s brother, after the widow’s annuity is paid. There is a gift to the brother of all the proceeds of a sale of the property beyond what is required for the payment of the widow’s annuity. Though testator left other brothers and sisters, there is no mention made of them. There is the further significant circumstance that some power over the disposition by sale of the land is given to Peter. It is true that it is an authority only to advise or to consent in the execution of the power of sale by the executor, but when we consider that fact in connection with the fact that a sale would result in vesting in him the proceeds beyond any cavil and doubt, an inference arises, and one which seems irresistible to my mind, that the testator supposed it of no consequence to, his brother’s interests whether the estate remained intact, or was converted into money.

The case is one where the presumption is independent of conjecture. It rises beyond a mere surmise, for it is based on circumstances which leave no hesitation in the mind of the court as to what was the testator’s purpose. The formal words of a devise to Peter may be absent, but it is perfectly clear that it was the intention to devise the land, and that would be consistent with the expressed gift of the proceeds of a sale. The rule of construction being satisfied by the presence of the elements establishing a presumption, the courts must read into the clause a devise of the land to the brother, subject to the trust provision for the widow. The power of sale does not affect the question of Peter’s rights, other than to emphasize them. In the event of its execution, the testator gives to Peter all of the proceeds of the sale not required to pay his wife $600 annually during her life or widowhood. Nothing could more strongly evidence a condition of mind in which the testator believed his brother Peter would receive all of the estate, subject to the widow’s provision, and whether it remained in the shape of realty or was converted into money, than does this language of the clause.

The judgment recovered by the plaintiff should be reversed and a judgment entered dismissing his complaint, with costs.

All concur. 
      
       Affirming 23 N. Y. State Rep., 626.
     