
    Delaney v. McGuire et al.
    
    
      (Supreme Court, General Term, First Department.
    
    April 17, 1891.)
    Construction of Will—Nature of Estate.
    Testatrix devised certain real estate for the use of her niece, “to use the income thereof during the minority of my said niece, to pay the interest on the mortgage now on said property, and the taxes, insurance, water-rents, and repairs necessary on said premises, and, after paying said charges, to use the balance, if any there should be, for the support, maintenance, and education of my said niece; but in case my said niece should die before the age of 21 years without lawful issue, and should not at the time of her death have lawful issue, then X give the said house and lor to my lawful heirs. I hereby authorize and empower the aforesaid trustee of my said niece to sell and convey, by good and lawful deed, the house and lot, if, in his judgment, it will be for the best interest of my said niece, at any time, for all cash, or part cash and part mortgage. ” Held that, under said devise, said niece took only a trust-estate for the term of her minority, testatrix not intending an absolute gift.
    Appeal from judgment on report of referee.
    Action by Annie M. Delaney against Annie A. McGuire, Jane Smyth, and others, to foreclose a mortgage. The controversy in the case was between the defendants as to the disposition of a surplus remaining after the satisfaction of the mortgage, which involved the construction of a devise under which the defendant Annie A. McGuire claimed the whole of the fund. The defendants Jane Smyth and others appeal from an order confirming the report of a referee adverse to their contention.
    Argued before Van Brunt, P. J., and Daniels and Lawrence, JJ.
    
      Hamilton R. Squier, for appellants. William J. Lardner, for Annie A. McGuire, respondent.
    Counsel for respondent cited the following cases and authorities: Cropton v. Davies, L. R. 4 C. P. 159; 2 Jarm. Wills, c. 17, pp. 130, 131; Tomkins v. Tomkins, 1 Burrows, 234; Wilks v. Williams, 2 Johns. & H. 125; Peat v. Powell, Amb. 387, (1st Ed.) 479; Crazier v. Bray, 120 N. Y. 366, 24 N. E. Rep. 712; Roe v. Vingut, 117 N. Y. 204, 22 N. E. Rep. 933; Ritch v. Hawxhurst, 114 N. Y. 512, 21 N. E. Rep. 1009; Masterson v. Townshend, 123 N. Y. 462, 25 N. E. Rep. 928; Hoskins v. Hoskins, 9 East, 306; Tunaley v. Rock, 3 Drew. 720; Theobald, Wills, 415 et seq., citing Paylor v. Pegg, 24 Beav. 105; Gardiner v. Stevens, 30 Law J. Ch. 199; In re Harrison’s Estate, L. R. 5 Ch. App. 408; 3 Jarm. Wills, 26, and cases cited; Doe v. Cundall, 9 East, 400; Marshall v. Hill, 2 Maule & S. 608; Doe v. Coleman, 6 Price, 179; Atkinson v. Paice, 1 Brown, Ch. 91; Newland v. Shephard, 2 P. Wins. 194; Peat v. Powell, Amb. 387, (1st Ed.) 479. See foot-note, 2 Jarm. Wills, 127.
   Van Brunt, P. J.

This proceeding was to ascertain the priorities of lien upon certain surplus moneys arising from the sale under foreclosure of a house and lot Eo. 125, East Seventy-Third street, in the city of Éew York, which was owned by one Margaret B. Duffy at the time of her death. The said Margaret died on the 14th day of March, 1882, leaving a last will and testament, which was duly proved before the surrogate of the county of Eew York, and letters testamentary issued thereon to one James Boyle, the father of the testatrix; In September, 1883, the said Boyle died, and thereafter, on February, 1884, letters of administration with the will annexed were duly issued to one Thomas Smythe, the brother-in-law of the testatrix. At the time of these proceedings the respondent, Annie A. McGuire, and Jane Smyth and James Smyth, infants, were the only heirs at law and next of kin of the testatrix, and said infants claim a share in said surplus moneys, the whole balance of which has been by the order appealed from awarded to the said Annie A. McGuire. The claims above mentioned arise under the said will of Margaret B. Duffy, which is, so far as it affects this controversy, as follows: “First. That I hereby direct my executor hereinafter named to pay all my just debts, funeral expenses, and testamentary charges as soon after my decease as the same can be done. Second. I hereby give, devise, and bequeath unto James Boyle, as trustee of my niece Annie McGuire, my house and lot jf land situated on the northerly side Seventy-Third street, between Lexington and Fourth avenues, and now known by the street number one hundred and twenty-five East Seventy-Third street, in the city of Sew York, to use the income thereof during the minority of my said niece, to pay the interest on the mortgage now on said property, and the taxes, insurance, water-rents, and repairs necessary on said premises, and, after paying said charges, to use the balance, if any there should be, for the support, maintenance, and education of my said niece; but, in case my said niece should die before the age of twenty-one years, without lawful issue, and should not at the time of her death have lawful issue, then 1 give the said house and lot to my lawful heirs. I hereby authorize and empower the aforesaid trustee of my said niece to sell and convey, by good and lawful deed, the house and lot, if, in his judgment, it will be for the best interest of my said niece, at any time, for all cash, or part cash and part mortgage. And I hereby authorize and empower him to mortgage or lease the said house and lot as such trustee, if needful or necessary, in his judgment, at any time. If the said trustee should exercise the power of sale contained herein as to the said house and lot, the same may be at public auction or private sale. Third. I hereby authorize, empower, and direct my executor hereinafter named to sell and convey, by good and lawful deed or deeds, all the rest, residue, and remainder of my real estate at public or private sale, as soon after my death as the same can be done, for cash or part cash, and part on bond and mortgage may remain as shall be agreed upon, the same to remain at lawful interest; and the proceeds of the sale of such real estate shall be invested by my executor on good real estate in the city of Mew York, and the income thereof used for the support of my father, and the support, maintenance, and education of my niece Jane Smyth, and nephew James Smyth, and my niece Annie McGuire; and my executor hereinafter named is hereby appointed trustee to receive and disburse the said income and invest the said principal. ”

• It is urged upon the part of the appellants that, by the second clause of the will. Annie McGuire only took an estáte during her minority in the premises out of which the surplus proceedings arose; and it is claimed by the respondent, and was so reported by the referee, that, upon her arrival at 21 years of age, she became seised and possessed in fee-simple of the premises in question. There are no words of gift to Annie McGuire contained in the clause in question, but it is claimed that it was the manifest intention of the testatrix to give these premises to her upon her attaining the age of 21 years, and therefore she takes by implication; and we are cited to various cases in the English courts, and in our own, going to show that such construction is correct. An examination of these cases, however, will show that in all of them there was some plain indication of an intention that the devisee should enjoy the whole estate. The latest case in our courts upon that subject is Masterson v. Townshend, 123 N. Y. 458, 25 N. E. Rep. 928, where it was held that there was a devise by implication. In that case the will contained a power of sale, with a direction to pay, upon the happening of a certain contingency, the whole of the proceeds to the person to whom it was held there was a devise by implication. It was the plain intention that the party should take absolutely upon the happening of the contingency, and, although there were no express words of gift except upon a sale, it was held that a gift was plainly intended. • In the case at bar there is not only no intention expressed of an absolute gift, but the language of the will expressly excludes such an intention. The testatrix gives the premises in question to her executor, as trustee of her niece Annie McGuire, to use the income during the minority of her niece in-the manner specified, and then says: “But, in case my said niece should die before the age of twenty-one years without lawful issue, and should. not at the time of her death have lawful issue, then I give the said house and. lot to my lawful heirs.” The said niece has arrived at the age of 21 years. It is plain that the time of death intended by the testatrix did not mean death during her life-time, because the language is inapplicable to any such con-, struction. Death at any time before 21 years of age, without lawful issue, gave the estate to the lawful heirs of the testator. The testatrix intended evidently that Anna McGuire should, during her life, have the use of this property, and upon her death it would go to her children, if she left any; if not, it was to go to the heirs of the testatrix. This construction, it seems to-us, is reinforced by the clause of the will next occurring after the provision referring to death during her minority. It says: “And should not at the time of her death have lawful issue, then I give,” etc. If the word “or” is. substituted for the word “and,” the meaning at once becomes apparent, and such was undoubtedly the intention of the testatrix. If she should die during minority without lawful issue, or should not at the time of her death, whenever it might occur, leave lawful issue her surviving, then the estate ■ would go to the lawful heirs of the testatrix. This shows an intention upon the part of the testatrix that Annie McGuire should enjoy this estate during-her life, and, if she left issue her surviving, that she should have the right to dispose of the same as she saw fit; but, if she died without lawful issue her surviving, she could only enjoy the estate during her life, it going upon her-death to the lawful issue of the testatrix. This interpretation is in harmony with the views expressed by the court of last resort in the case of In re New York, L. & W. Ry. Co., 105 N. Y. 89, 11 N. E. Rep. 492. If the referee had seen that rule 64 of the general rules of practice had been complied with, as was his duty, and had required certificates of the clerk as to the appearances in the action and notice of claim to the surplus moneys, and proof of service of notice of the proceedings before him upon such persons, so that we could have seen that the proper parties had received notice of these proceedings, we might now make the proper order distributing this surplus; but,, as no attention seems to have been paid to the requirements of the rules as to notice, we can simply reverse the order appealed from, with $10 costs and disbursements, and remit the proceeding to the special term for further action, where it is to be hoped that it will be seen to that the proper evidence-is produced that the parties entitled to notice have received the same. This result to be, however, without prejudice to the right of Patrick J. Lynch to. claim payment of his debt, and of the surplus, upon such proof as would, charge the heir with the payment of this debt because of receipt of assets.

All concur.  