
    In the Matter of the Final Judicial Settlement of the Accounts of the Executors of the Last Will and Testament of James McClure, Deceased.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed April 4, 1892.)
    
    Will—Construction .
    The provisions of testator’s will over which the controversy arose were : “ I give and bequeath unto my beloved wife, M., all my real estate owned by me of every name and description, also all my personal property of every kind and nature, also my life insurance, stocks and mortgages to have and to hold, ‘with full power to collect all rents and income from the same, she to keep in repair, and pay all taxes and insurance on the same, with full power to sell any or all such real estate, with the consent of my executor, should it be thought best for the estate; should she marry again, then her right of dower only in my estate. I also give her discretionary power to give such sums of money to any, as she may think proper, of my relatives.” Held, that testator’s widow took only a life’s estate.
    This is an appeal from the decree of the surrogate of Albany county, made on the final judicial settlement of the executors of the will of James McClure, deceased.
    The appeal is prosecuted by five infant heirs-at-law and next of kin of the deceased, individually, and Francis H. Woods as their special guardian.
    
      Francis H. Woods, for app’lts; George H. Stevens, for resp’t.
   Mayham, P. J.

The testator made the will in question on the 9th day of November, 1888, and died on the 11th of October, 1889, at the age of seventy-five years, leaving him surviving his ■widow, the respondent on this appeal, and three children of full age and five grandchildren who were the children of two deceased sons of testator, all of whom are infants, and the appellants on this appeal.

The deceased left real estate valued at about $96,000 and personal property valued at about $68,000. The will was drawn by the testator in his owti hand-writing, and in it he nominated and appointed his wife as executrix and W. Frothingham as executor, both of whom qualified and entered upon their duties as such, at the time the will was admitted to probate. No mention is made in the will of the children or grandchildren of the testator, and the sole beneficiary named therein is the wife of the testator.

On the application of the executors for a final judicial settlement before the surrogate, the appellants filed an answer to their petition alleging that the true interpretation and legal effect of the will of James McClure are doubtful, in that it does not clearly appear from said will whether the testator intended thereby that his widow should take a life estate in the personal property therein disposed of, or whether he intended thereby that she should take the property absolutely.

Upon the issue thus made the question was litigated before the surrogate, who, among other things, adjudged and determined that under the will the title to all the personal property of which the testator died seized and possessed was vested in and belonged to his widow absolutely, and decreed that it be transferred to her after deducting therefrom the legal expenses of the executor and executrix and the expense of the accounting.

From this determination and decree of the surrogate the appellants appeal. On the part of the appellants it is insisted that the whole will taken together and read, and construed in the light of surrounding circumstances, clearly establishes the intention of the testator to give to his widow only a life estate in both his real and personal property.

On the part of the respondent it is contended that by the clear and unequivocal language of the will the testator devised and bequeathed all of his estate real and personal to his widow absolutely.

The main and only question raised on this appeal is as to the true intent and meaning of the testator in and by his will. Did he give only a life estate to his widow, and die intestate as to the remainder after her death, or her marriage, or did he devise and bequeath all of his estate, real and personal, to his widow in fee and absolutely ?

The provisions ■ of the will over which the controversy arises are as follows : “ First —After all my lawful debts are paid and discharged, I give and bequeath unto my beloved wife, Mary I. McClure, all my real estate owned by me of every name and description, also all my personal property of every kind and nature, also my life insurance, stocks and mortgages, to have and to hold, with full power to collect all rents and income from the Same, she to keep in repair, and pay all taxes and insurance on the same, with full power to sell any or all such real estate, with the consent of my executor, should it be thought best for the estate; should she marry again, then her right of dower only in my estate.

“ I recommend she appoint a good agent to take charge of my estate. I also give her discretionary power to give such sums of money to any, as she may think proper, of my relatives.”

It is a cardinal principle in the construction of wills that the intention of the testator must control9 if ascertainable from the will itself, when the language of the will is clear and free from ambiguity or repugnance ; but if not free from abiguity or repugnance, effect is to be given, if possible, to all of its provisions, and no clause is to be rejected or interest intended to be given sacrificed on the ground of repugnance when it is possible to reconcile the provisions which seem to be in conflict.

Tested by this rule it becomes necessary to inquire whether there is anything in this w'ill which is inconsistent with the theory of an absolute devise and bequest of all of this property, real and personal, to the respondent.

One of the essential qualities of an absolute devise and bequest is the complete and absolute power of voluntary disposition of the property so devised and bequeathed by the devisee and legatee ; but if the devise or bequest is absolute so as to convey the absolute title to the devisee or legatee, and a condition is annexed in restraint of alienation, the condition is sometimes held repugnant to the grant and void. In this case it seems to be conceded by the appellants that the language employed by the testator at the commencement of his will would, if not qualified or restricted by the subsequent provisions, vest in the respondent the absolute title to the entire estate.

The language as to which this concession is made is as follows : “ I give and bequeath to my beloved wife, Mary I. McClure, all my real estate owned by me of every name and. description, also all my personal property of every kind'and nature, also my life insurance, stocks and mortgages.”

But it is insisted that this language and its effects are qualified by the provisions which follow, and that such qualifying language explains the meaning of the preceding part of the instrument, and is not repugnant to it; and, when read as a whole and construed in reference to the circumstances of the testator and the natural objects of his bounty, proves that his intention was to vest in the widow only a life estate. It is quite apparent from the provisions of • this will that the testator intended its provisions to operate alike on his real and personal estate; and in determining whether the bequest of the personal estate was absolute, we maj' look at all the provisions of the will relating to both the real and personal property.

Looking at the will as a whole, we are to endeavor to so construe it as to give effect to all of its provisions. In Taggart et al. v. Murray et al., 53 N. Y., 236, Andrews, J., lays down this general rule: “ But in the construction of wills, as of other written instruments, the intention is to be ascertained by the consideration of the whole instrument, and the construction is not to be made upon a single or- isolated clause detached from its relation to those with which it is associated. If ■ on a comparison of the different provisions of the will it is found to contain dispositions which are repugnant to each other, then it is the office of judicial interpretation to preserve, if consistent with the rules of lays', the paramount intention of the testator as disclosed by the instrument, although in so doing it may defeat his purpose in some subordinate or less essential particular.

“ It is, however, a primary rule in the construction of wills that effect is to be given, if possible, to all its provisions, and no clause is to be rejected and no interest intended to be given is to be sacrificed on the ground of repugnancy when it is possible to reconcile the provisions supposed to be in conflict. In accordance with this rule, it is held that subsequent clauses in a will are not incompatible with, or repugnant to, prior clauses in the same instrument, when they may take effect as qualifications of the latter without defeating the intention of the testator.”

In Norris v. Beyea, 13 N. Y., 284, Denio, J., says: “But there is no repugnancy in a general bequest or devise to one person in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event the estate thus given should be diverted or go over to another person. The latter clause in such case limits and controls the former, and when they are read together, it is apparent that the general terms which ordinarily convey the whole property are to be understood in a qualified and not absolute sense.”

But in the cases cited, and others of a similar character which might be cited, the testator by the will disposed of the property to some other legatee or devisee after the happening or failure of the contingency upon which the right of the first takers depended.

In the case at bar, if it be held that the respondent takes only a life estate under this will, then as to the remainder the testator died intestate. ' .

While it is true that where a testator makes a will assuming to dispose of his property, the law does not favor intestacy, and the presumption is that he intends to dispose of all of his property, yet that presumption may be overcome, and does not prevail where by the terms of the will it is apparent that the testator intended that his estate should ultimately be disposed of under the laws of distribution and descent.

In this case it seems that the testator by his will imposed conditions upon his property, and its future occupancy and control by his widow, inconsistent with an an absolute estate in her, and entirely in harmony with the estate for life.

Tiie express authority to collect rents given in the will, while it is not inconsistent with an estate in fee, was wholly unnecessary if the testator intended by his will to vest in his widow the title in fee, but is entireíy consistent with the beneficial enjoyment by the life tenant.

Again, the direction in the will that testator’s widow shall keep in repair and pay the taxes and insurance on the property is imposing an obligation on her inconsistent with the idea of absolute title in her, and entirely in harmony with the theory -of a life estate.

If the testator intended to preserve this estate for the benefit of his heir and next of kin he might properly impose upon the life tenant the duty of preventing it from sale for taxes, and its protection from destruction by fire, and decay by the ravages of time. But no such obligation could be imposed by a grantor or devisor upon the owner of an estate in fee.

Again, if his widow should marry again, her estate by the terms of the will would be cut down to her dower interest, and in that event clearly as to the real estate the testator would die intestate, .and must have so intended, as that would be the clear legal effect -of the will.

Again, the limitation imposed by the will upon her power of sale of the real estate is not in harmony and cannot be reconciled with the idea of an absolute estate in her in fee simple. She can only sell with the consent of her co-executor.

There must be a concurrence and consent by the executors before she can alienate this property. The testator could impose -no such restraint upon alienation if she had the title in fee. But he had the power to impose such restrictions upon alienation when the right to sell was derived from the power of sale in the will, and in that case it was clearly in the power of the testator to require a concurrence of both executors, and when such restrictions are imposed in the power of sale it can only be exercised according to the delegated power. Hyatt, Ex'r, v. Aguero, 14 Civ. Pro., 286; 17 St. Rep., 746.

Again, the provision of the will wherein he says: “I also ■give her discretionary power to give such sums of money to any, .as she may think prudent, of my relatives.” ■ If this was an absolute bequest of all of his personal estate to his wife, and so intended and understood by the testator, he would not have attempted to impose a restraint upon her of making his relatives the sole object of her gratuities. The authority to sell the real estate with the consent of the executor and to make gifts to his relatives necessarily excludes by legal implication the power to sell without such consent, or give personal property except to his relatives.

The maxim expressio unius est exclusio alterius applies to these provisions. All of these qualifications and exceptions are consistent with the testator’s intent to create a life estate in all of his property in his widow, and may, within the rules of interpretation above referred to, operate as qualifications of the language of the provision first employed in it, but if we give that language the: force of an absolute bequest of the personal and devise in fee of the realty, then we must treat these latter provisions as repugnant, in violation of the rule we have quoted from Taggart v. Murray, supra, that 'in the construction of a will, effect is to be given, if possible, to all its provisions, and no clause is to be rejected on-the ground of repugnancy, when it is possible to reconcile the provisions which are supposed to be in conflict. We think the case differs essentially from Clarke v. Leupp, 88 N. Y., 230. In this case, the will imposed no condition on devisee and legatee in the-use or disposition of the property to whom she pleased, and without the consent of any co-executor or any other person.

So in Campbell v. Beaumont, 91 N. Y., 467, the court held that the devise and bequests were absolute to the wife, without any words of qualification, and that the request that the remainder-should be preserved for his step-son did not divest the widow of her absolute estate.

But the will contained no such restraints and qualifications as-are found in the will under consideration, and the case is therefore distinguishable from this. So in Lawrence v. Cooke, 104 N. Y., 636; 6 St. Rep. 772, the will contained an absolute and unconditional devise under which the title passed to the devisee without any charge upon it except in the discretion of the devisee, but contained no condition by which the estate of the devisee could be lessened or impaired, and no restraint on the alienation of the same by the devisee, and seems therefore to be clearly distinguishable from the case at bar.

Nor do I find any case cited by the learned counsel for the-respondent upon this point which is not distinguishable upon; principle from the one under consideration.

The case of Van Horne, Ex'r, v. Campbell, 100 N. Y., 287, holds that an absolute power of disposition annexed to a primary devise in fee is deemed conclusive of the existence in the devisee of an absolute estate. But we have seen that the will under considation in this case does not give the devisee an absolute power of disposition. The right to dispose of this real estate depends upon the volition of the two executors and is not an absolute power in the devisee or in her as executrix without the concurrence of her co-executor. Nor has she the power of absolute disposition of the personal property. The will confines her in the disposition of it to the relatives oE the testator.

And the rule is the same as to the bequests of personal property as it is to devises of real estate. Van Horne v. Campbell, supra. In the case last cited the authorities are examined at. great length, and the distinction carefully noted between an absolute devise or bequest when the first taker acquires under the will an absolute estate, not capable of being defeated by an execu^ tory devise over which is repugnant to the first devise, and the cases where such subsequent provision qualifies, limits or controls the first provision, and the rule seems settled that when the will gives the devisee or legatee unrestrained power of disposition, the title is absolute, but where there is a restriction upon the power of alienation, or disposition, the title is qualified and may be bound or controlled by the subsequent provisions of the will Applying that rule to the will under consideration and looking as we may at the circumstances and surroundings of the testator, the amount of the annual income of the estate, the age of the respondent, and the children and grandchildren of the testator, all of which circumstances and surroundings may be taken into consideration as circumstances reflecting some light upon the question •of the intention of- the testator in making this will, we are inclined to the opinion that the respondent took under this will only a life estate, with a qualified power of sale of the real estate .and a limited right of disposition of the personal property or a portion of the same in accordance with the provisions of the will

The decree of the surrogate must, therefore, be reversed, and •the case remitted to the surrogate, to make a decree in accordance with the provisions of the will as determined on this appeal, with •costs to the appellant out of the estate.

Putnam, J., concurs; Herrick, J., not voting..  