
    William A. Schult, App’lt, v. Conrad Moll, Resp't.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    Will—Construction of.
    . The will of oneH., after devising to each of his “daughters” one-third of his real estate, gave “to my wife, Babetta H., one-third, that is-to say, her dower right of my estate.” It also gave a power of sale, and provided that the moneys arising therefrom should be deposited in savings banks until the children arrived at the age of twenty-one, “then they to receive their interest of one-third of the moneys deposited therein,” and devised to the wife the rents and interest during the minority of the children. Babetta was not the lawful wife of testator, but had been the wife of one R., who was still living, and who had procured a divorce-from her with the usual restriction against remarriage. One of the daughters named was the issue of the marriage with R., and the other was bom while testator lived with Babetta. Held, that the devise to Babetta vested in her the fee of an undivided one. third of testator’s real estate, as testator really left no heirs at law, and unless Babetta took a f ee; he died intestate, subject to a life estate, and the law favors a construction which will prevent partial intestacy.
    
      Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment of' the trial term of said court.
    
      Moffett & Kramer, for app’lt; Jacobs & Butcher, for resp’t
    
      
       Affirming 31 St. Rep., 979.
    
   Parker, J.

The complaint averred the making of a contract for the purchase and sale of lands; the payment of $500 on account of the purchase price by the plaintiff; the failure of the defendant, the other party to the contract, to perform, and demanded judgment for the instalment paid, and the expense incurred in making a search.

The answer admitted the making of the contract; denied performance on plaintiff’s part; alleged ability to perform, and a proffer of performance on the part of the defendant, and demanded judgment that the' contract be specifically performed.

John Hablawitz was formerly the owner of the premises in question. He died February, 1876, leaving a last will and testament, by which he devised his estate as follows: • “ To my adopted daughter, Wilhelmina Hablawitz, one-third of my real estate; to my daughter, Catharine Hablawitz, one-third of my real estate; to my wife, Babetta Hablawitz, one-third, that is to say, her dower right to my estate.”

Whether the defendant’s title is good and marketable depends upon the answer which must be given to this inquiry: * *■ * Did the devise to Babetta vest in her the fee of an undivided one-third of testator’s real estate, or only a life estate therein? How this question comes to be controlling may be briefly stated. Babetta Hablawitz was not the lawful wife of the testator, as she had formerly been married to one John Reinig, who obtained a judgment of absolute divorce against her which contained the usual restriction against her remarriage during the lifetime of Reinig, who was still living at the time of testator’s death.

The testator and Babetta lived together as husband and wife, during which time Catharine Hablawitz was born. Wilhelmina Hablawitz mentioned in the will as the adopted daughter of the testator was the child of John and Babetta Reinig, born in lawful wedlock.

Babetta died, intestate, a few months after the death of John Hablawitz. Catharine died within a year thereafter, aged two years, leaving no -relatives on the father’s side, and only her maternal grand-mother and the half-sister Wilhelmina on her mother’s side.

Subsequently, proceedings were instituted under the statute authorizing the sale of infants’ real estate which resulted ■ in a conveyance of Wilhelmina’s interest in the real estate to this defendant The regularity of these proceedings are not brought in question, so if Babetta acquired under the will the fee of an undivided one-third, upon her death such one-third descended to her daughters Wilhelmina and Catharine, in equal shares, each of whom thereupon became vested With the undivided one-half of such real estate, and upon the death of Catharine her undivided one-half passed to her half-sister Wilhelmina, who thereupon became seized in fee of the whole of said premises. 1 R. S., 753, § 14; Laws 1855, chap. 547; Bollermann v. Blake, 24 Hun, 187.

We are thus brought to a consideration of the question whether by the devise to Babetta she became vested with a fee, or a life estate.

It may be conceded at the outset that the language of the devise standing alone is capable of either construction, and in determining which of the two is required by the will, the court may invoice the aid of the rule which commands that effect shall be given if possible to the manifest intention of a testator. The intention which is to be derived from the language employed in the will may be interpreted in the light of the surrounding circumstances.

It may be observed in the first place that the testator left no heirs at law, and that had he died intestate as to any portion of his estate it would have escheated to the state, and no circumstances are disclosed which would indicate such a desire on his part. That he intended fully to recognize the claims of Babetta, whom he called his wife, upon him is apparent from the general scheme of his will.

Wilhelmina, whom he describes as his adopted daughter, was in no way connected with him by ties of blood, but was the daughter of his wife by her divorced husband, and yet he devises to her one-third of his estate, the same proportion as that given to Catharine, whom he speaks of as his daughter and who was born while testator and Babetta were living together as husband and wife.

There remained yet one-third, and as to it his will continues: “ To my wife Babetta Hablawitz one-third, that is to say, her dower right, of my estate.” In view of the disposition made of the other two-thirds by which he provided for the children of his wife, coupled with the fact that he had no heirs to take lands as to which he should die intestate, it would seem as if he must have intended that she should have the other one-third, which he may have understood to be a wife’s portion. But knowing that she was not his lawful, wife he declares her to be such and characterized the gift in language indicating that he regarded her as sustaining that relation towards him.

That he intended to give Babetta and her daughters his entire-estate has support in the other provisions of the will. After the devise to Babetta the will continues: “ and I give to my wife Babetta Hablawitz, in conjunction with the below named executor, full power to sell and transfer my real estate for the best price they can obtain, and the money received from such sale or sales to be deposited in a savings bank by my wife and the below named executor, until my above named children arrive at the age of twenty-one years, then they receive their interest of one-third of the money deposited therein. And I further devise to my wife the rents and interests of my estate during the minority of my. children.”

It will be observed that he confers upon Babetta, in conjunctian with the executor, a power of sale as to all the real estate of which he died seized, and directs them to deposit the proceeds in a savings bank, until the children reach their majority. Until which time he gives the rents and interest of the entire estate to Babetta.

We have thus referred to the language of the will, and briefly to the surrounding circumstances, which may properly be employed in its interpretation, and they seem to strongly indicate that it was the intention of the testator to vest the fee of an undivided one-third of his real estate in Babetta. One of the facts alluded to has been given prominence in repeated adjudications involving the question of intent. We refer to the fact that if Babetta did not take a fee then as to an undivided one-third of the estate testator died intestate subject to a life estate.

The law favors a construction which will prevent partial intestacy. Redfield, m his work on wills, says: “ The courts have for a long time inclined very decidedly against adopting any construction of wills which would result in partial intestacy unless absolutely forced upon them. This has been done partly as a rule of policy perhaps, but mainly as one calculated to carry into effect the presumed intention of the testator, for the fact of making a will raises a strong presumption against any expectation or desire on the part of the testator of leaving any portion of his estate beyond the operation of his will.” Yol. 2, p. 442.

This proposition has also received attention in Lyman v. Lyman, 22 Hun, 263; Vernon v. Vernon, 53 N. Y., 351-361; Provoost v. Culyer, 62 id., 545, and Byrnes v. Baer, 86 id., 210-218.

If the words “ that is to say, her dower right ” were omitted the devise would unquestionably carry the fee. For the reasons already given the conclusion is reached that they were not employed for the purpose of restricting or cutting down the estate, and the clause should accordingly be read as devising to Babetta the fee of an undivided one-third of testator’s real estate.

As the question presented involves only the construction of a written instrument, no reason suggests itself for refusing to decree specific performance.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  