
    Barbara Miller, Resp’t, v. Frederick P. Gilbert et al., App’lts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed March 7, 1893.)
    
    Will — Vested remainder.
    Testator died leaving a widow and four sons, and a will drawn by himself, which provided that his wife should have uncontrolled use and occupancy of his three houses and lots as long as she should continue his widow, but if she ceased to be his widow by death, said houses should be sold and the moneys divided among said sons; if she ceased to be his widow by marriage, the houses to be sold and one-half the moneys to be her’s as long as she lived and then revert back to his children; the other half to be divided among his children. He also made provision for equality among the children. One of the sons became bankrupt and died before the widow, Having children. Another conveyed his interest and died before the widow, leaving children. In an action for partition brought by the grantee of the second son who died, Held, that testator intended to give all his property to his sons, subject to the l'fe estate of the widow provided she did not remarry; that the direction for a sale on the death or remarriage of the widow was merely a provision for the equal and convenient division among his sons, and that they took vested interests on his death, which passed by the aforesaid deed and bankruptcy proceedings.
    Motion for a new trial on exceptions, after judgment for plaintiff.
    
      Theo. Burgmeyer, for resp’t; Hugh A. McTernan and Edgar Whitlock, for app’lts.
   Osborne, J.

One Raphael Gilbert died June 6, 1863, leaving a holographic will dated March 16, 1852, which was duly admitted to probate August 3, 1863. Said will is, in part, as follows : " This my last will and testament. Be it known by these premises to all whom it may concern, that I, Raphael Gilbert, of the city of Brooklyn, in the state of Mew York and of the United -States of America, do give to my wife, Maria, on the day of my death a free and uncontrollable use and occupancy of my houses and lots situated Mo. 121 Prospect street, 151 York street and ■335 Bridge street, as long as she shall continue my widow, but if she shall cease to be my widow by death, then the aforesaid ffiouses and lots shall be sold and the moneys arising therefrom shall be equally divided among my children, viz., Philo Baker Gilbert, Wesley Oárlo Gilbert, Henry Still Gilbert, Wilbur Fisk Gilbert, or their heirs. But if she shall cease to be my widow by marriage, then the aforesaid houses and lots shall be sold, and one-half of the moneys arising therefrom shall be her’s, to be used for her benefit and comfort as long as she shall live, and then it shall revert back to my children and be equally divided among them ; and. the other one-half of the moneys arising from the sale of the aforesaid houses and lots shall be equally divided among my children as aforesaid.” Testator also made a similar disposition of' his furniture and other household chattels for the benefit of his widow and children, providing, however, for a division thereof in kind, instead of directing a sale thereof Then follows a legacy of ten dollars to each of his children, adding as follows : “ I have given to each of my children $100 more or less, except Wilbur, which sum shall be paid to him to make him equal with the others.” No executors were named in or appointed by said will.

The testator left him surviving his widow and said four sons as his only heirs-at-law. The widow, Maria, died January 31, 1891, never having remarried.

In 1868 Philo B. Gilbert was adjudged a bankrupt, and all his property was conveyed to his assignee, and subsequently, by virtue of sundry mesne conveyances, became vested in the defendant, Oarrie G. McClellan. The said Philo B. Gilbert pre-deceased his mother, leaving children, his heirs at law, him surviving.

On April 18, 1879, the said Wilbur F. Gilbert, with his wife, conveyed all his right, title and interest, and share in the said premises, to one George F. Miller, and subsequently, by virtue of sundry mesne conveyances, the same became vested in the plaintiff. The said Wilbur F. Gilbert also pre-deceased his mother, leaving children, his heirs at law, him surviving.

Wesley C. Gilbert survived his mother, and died May 26, 1891, and under his will his interest in said real estate has been conveyed to his brother, the defendant, Henry S. Gilbert, whose ownership of a one-half interest in said premises is not here disputed.

This action was commenced for a partition of said premises.

The learned trial judge has found inter alia as conclusions of law, that, under said will, and by the laws of this state, said four children of the testator, on his death, became seized of a vested remainder in fee in said premises, subject only to the life estate of testator’s widow ; also that the provision for the sale of said premises at the death of testator’s widow was not an equitable conversion into money, and a gift of personal property at her death, but only a direction and authority for the convenience of division, and solely for that purpose. An interlocutory judgment has been entered in accordance with said findings and conclusions.

The appellants, the children of Wilbur F. and of Philo B. Gilbert, have filed exceptions to said conclusions, and seek to obtain a new trial on said exceptions. Their contention is that, under the will, there was no devise of the lands, but only of the proceeds of sale thereof, which were to be divided among the testator’s children at, and not until, the death of the widow; that there was an equitable conversion of the realty into personalty on her death; that nothing passed under the deed of Wilbur F. Gilbert and under the bankruptcy proceedings against Philo B. Gilbert, and that, as they both pre-deceased their mother, the testator’s widow, their children are now entitled, on her decease, to take the share of their respective fathers.

It is a fundamental principle in the construction of wills that the intent of the testator is to be determined from the instrument taken as a whole rather than from isolated or particular phrases, and this rule applies with greater force where, as in the present case, the will was drawn by the testator himself, and the form thereof and the language and expressions used clearly indicate that the draftsman was unskilled in matters of that character. Lytle v. Beveridge, 58 N. Y., 592. Applying this rule to the will before us, we are of the opinion that the testator intended to give all his property to his four sons, to be equally divided between them, subject only to the life estate of the widow in the whole thereof, provided she did not remarry ; but in case she remarried, then she was only to have a life estate in one half of the realty, and the other half was “ to revert back to my children,” as the testator puts it. We think that a fair and reasonable interpretation of the words “ revert back ” indicates that the testator assumed and believed that by the preceding language he had already vested his real estate in his children in equal shares, subject to the use thereof by his widow during her life or widowhood. His disposition of his personal estate, furniture, etc., is in the same direction, as well as the legacy of $100 to his son Wilbur “ to make him equal with the others.” Nowhere in the will is there the slightest indication, on the part of the testator, of an intent to create a trust during the life of his widow, or to tie up his property till her death. On the contrary, in the closing clause of his will, he directs that, if it should be necessary to sell any part of his realty to pay mortgages or debts, “ let it be sold and the remainder of my property shall be disposed of as aforesaid.” Here again the use of the words “ disposed of ” would seem to indicate that the testator assumed that he had effectually devised and bequeathed all his property, and not that he had established a trust during the life or widowhood of his widow with a gift of the proceeds of the sale thereof on her death.

Nor can we see that the use of the words “ or their heirs ” following the names of the testator’s children works in support of the appellants’ contention. Bearing in mind that the testator was unskilled in the use of legal phraseology, those words were, we think, intended to be used to vest his realty absolutely in his children; but even if they should be construed as words of substitution, then, on well settled rules, they should be construed as referring to the contingency of the death of one or more of testator’s children during his lifetime. As all of testator’s children survived him, the words of substitution, if they were such, would be inoperative.

The direction given by the testator that, on the death or remarriage of his widow, his real estate should be sold, was merely a provision for the equal and convenient division of his-property; it consisted of three houses and lots incapable of equal partition among his four sons, and the direction for a sale was the simple and natural method of arriving at what each son should be entitled to out of his property.

Ample authority for the construction that we have given to the testator’s will is to be found in the case of Snell v. Tuttle, 44 Hun, 324; 7 St. Rep., 615; Goebel v. Wolf, 113 N. Y., 405; 23 St. Rep., 176, and Matter of Anna M. Tienken, 60 Hun, 418; 39 St. 883; affirmed 131 N. Y., 391; 43 St. Rep., 184. The will construed in the last cited case contains substantially the same provision as the will in question with reference to the sale of real estate held in trust for testator’s wife, and the division of the proceeds among testator’s children on her death, and the court there held that testator’s children on his death took vested interests in such real estate, subject to the life estate of the testator’s widow.

We think that the exceptions should be overruled and the motion for a new trial denied, with costs.

Clement, Oh. J., concurs.  