
    In the Matter of the Judicial Settlement of the Accounts of Frances A. French, as Executrix of the Will of Phebe Hitchcock, Deceased.
    
      (Surrogates Court, Delaware County,
    
    
      Filed January 31, 1888.)
    
    1. Will—Rules of construction—Intent ofjtestator must govern— How ASCERTAINED.
    In construing wills the intention of the testator must govern, unless it violates some statute or well-settled rule of law, and this intention must be ascertained from the whole instrument, and when there exists a provision seemingly repugnant to other por,ions, such repugnant provision must, if possible be reconciled with the other provisions so that no interest intended to be given will be sacrificed.
    2. Same—Contingent future remainder valid—3 Rev. Stat., (7th ed.) 2178, §§ 32 and 33.
    A contingent future remainder, or estate, is authorized by 3 Rev. Stat. (7th ed.), 2178, §§ 32 and 33, and is valid even though the first taker is permitted to dispose of the whole during his life-time for purposes other than his maintenance and support, and thus by his will or volition defeat such contingent estate.
    8. Same—Construction of.
    The will of testatrix was as follows: "First, I give, devise and bequeath, unto my husband, John Hitchcock, all of my real, estate * * * to do with as he shall think best. Second, I give, devise and bequeath, unto my said husband, all and every kind of my personal property * * * and wish my said husband to do with said property as he shall think- best, during his life-time, without any let or hindrance from any source whatever. Third, I give, devise and bequeath, to my daughter, Mrs. F. A. Churchill, the sum of $8,000, to be paid her out of my real and personal estate at and after the death of my said husband, provided there be that amount in my husband’s hands at his decease. Fourth, I wish it to be distinctly understood that my said husband may use so much of my real and personal estate as he may wish during his life-time, and at his death if there be the sum of $8,000 remaining in his hands, that that amount be paid to my daughter, Mrs F. A Churchill, and if there be not the sum of $8.000 m his hands then, and in that case it is my wish that my said daughter have and receive whatever then remains in my said husb-md’s hands, to do with as she shall think best.’" Held, that the intention of the testatrix was that her husband should have the right, during. his life, to use the estate even to its exhaustion, and for purposes other than his support and maintenance; but, if at his decease, any remains, this remainder, to the amount of $8,000, her husband should not dispose of by will, but she herself bequeathed it to her daughter
    
      HaUocJc, Jennings & Chase, for Mrs. F. A. French, as executrix and individually; JET. D. Nelson and E. D. Wagner, for Mrs. Augusta H. Simpson, individually and as executrix, etc., of John Hitchcock, deceased.
   Arbuckle, S.

Phebe Hitchcock died at Davenport, in this county, on the 31st day of March, 1886, leaving a last will and testament containing the following provisions, viz.:

“First. I give, devise and bequeath unto my husband, John Hitchcock, all of my real estate, situate in said town of Davenport, to do with as he shall think best.

“Second. I give, devise and bequeath unto my said husband all and every kind of my personal property consisting in part of mortgages, bonds, notes and money, etc. and wish my said husband to do with said property as he shall think best during his life-time, without any let or hindrance from any source whatever.

“Third. I give, devise and bequeath to my daughter, Mrs. F. A. Churchill, the sum of $8,000, to be paid her out of my real and personal estate at and after the death of my said husband, provided there be that amount in my husband’s hands at his decease.

“Fourth. I wish it tobe distinctly understood that my said husband may use so much of my real and personal estate as he may wish to during his lifetime, and, at his death, if there be the sum of $8,000 remaining in his hands, that that amount be paid to my daughter, Mrs. F A. Churchill, and if there be not the sum of $8,000 in his hands then and in that case it is my wish that my said daughter have and receive whatever then remains in my said husband’s hands, to do with as she shall think best.

“Fifth. I do hereby nominate and appoint and constitute my husband, John Hitchcock, my executor, and my daughter, Mrs. F. A. Churchill, now of the city of New York, my executrix of this my last will and testament.

In witness whereof I have hereunto set my hand and seal this 22d day of July, 1884.”

This will was admitted to probate on the 26.th day of July, 1886, and on that day letters testamentary were issued to Frances A. Churchill, now Frances A. French, the surviving executrix.

John Hitchcock, the husband of Phebe Hitchcock, died on the 10th day of June, 1886, leaving a last will and testament which, after giving certain specific legacies, bequeathed and devised the remainder of his property equally to his two daughters, Frances A. French and Augusta H. Simpson.

This will was admitted to probate on the 27th day of July, 1886, and letters testamentary issued thereon to Frances A French and Augusta H. Simpson on the 3d day of August, 1886. None of the property left by Phebe Hitchcock was ever taken possession of by John Hitchcock under her will, and no portion of it was ever used by him or for hig benefit.

Upon this accounting it becomes necessary, and is the duty of the surrogate to construe the will of Phebe Hitchcock so far as to determine whether the legacy mentioned in the “third” provision thereof, belonged to John Hitchcock absolutely, and at his decease became a portion of his estate, or did he take therein only an estate for life, with power to use or dispose of the whole, but if such power was not exercised, the balance remaining to belong to the legatee Frances A. French. Code Civil.Pro., §§ 2472, 2481, 2443; In the Matter of Verplanck, 91 N. Y., 439; Riggs v. Cragg, 89 id., 479.

It is an unquestioned rule that in construing wills the intention of the testator must govern, unless it violates some statute or well-settled rule of law, and this intention must be ascertained from the whole instrument. No technical form of words is necessary to give effect to it, and when there exists a provision seemingly repugnant to other portions, such repugnant provision must, if possible be reconciled with the other provisions so that no interest intended to be given will be sacrificed. Roseboom v. Roseboom, 81 N. Y., 356; Campbell v. Beaumont, 91 id., 465; Taggart v. Murray, 53 id., 233; Van Vechten v. Keator, 63 id , 52.

The “first” provision of the will of Phebe Hitchcock relates to her real estate which is not in question upon this accounting. The first part of the “second” provision gives to her husband all her personal property absolutely and then adds: “And wish my said husband to do with said property as he shall think best during his life, without any let or hindrance from any source whatever.”

By the “ third ” provision she - bequeaths to her daughter, Mrs F. A. French, $8,000, to be paid but of her real and personal estate, at and after the death of her husband, provided there be that amount remaining.

By the “fourth” provision, the testatrix defines and endeavors to make plain what her intention was as expressed in these preceding provisions, and says in substance that she intends her husband shall be at liberty to use so much of her real and personal estate as he may wish to, during his life-time, but if at his death any portion remains unexpended, then to the amount of $8,000, that portion must belong to her daughter, Mrs. French, “to do with as she shall think best.”

From all these provisions read together there can be but one interpretation as to the intention of the testatrix, viz., that she intended to make full and ample provision for the maintenance, support and comfort of her surviving husband during his life, even to the extent-of her entire property, but if any portion of her estate then remained, she desired $8,000 of such portion to belong to her daughter, Mrs. French.

Unless this plain intention of the testatrix violates some statute or well settled rule of law, such must be the disposition of this case.

It is unnecessary to consider the cases referred to by counsel, decided under the common law and before the enactment of the revised statutes.

In Roseboom v. Roseboom (supra), the will provided: “I give and bequeath to my beloved wife Susan one-third of all my property, both real and personal, and to have and control my farm as long as she remains my widow * * * and at the death of my wife all my property, both real and personal, to be equally. divided between my eight .children.”

The question raised was whether the widow took a fee, or only a life estate in the one-third, and the court decided that she took a fee.

In Campbell v. Beaumont (supra), the will provided: “I leave to my beloved wife Mary Ann all my property * ' * • * to be enjoyed by her for her sole use and benefit, and, in case of her decease, the same, or such portion as may remain thereof, it is my will and desire that the same shall be received and enjoyed by her son Charles Lewis Beaumont, requesting him, at the same time, that he will-use well and not wastefully squander the little property that I have gained by long years of toil.”

The court say: this latter clause, seems insufficient to limit the wife’s estate or interest, and rather to have been intended to express the natural anticipation of the testator, that this property, or some of it, would, as matter of course, go from the mother to her child, and his acquiescence in such devolution coupled with the hope that what he had painfully acquired would not be wasted. And the court reiterates the principle that in construing wills the general rule requires the intention of the testator to be regarded. But as this will did not show a clear intention on the part of the testator to limit the interest of the wife to a life estate, held that the wife took an absolute title.

In Wager v. Wager (96 N. Y., 173), the court defines what it intended to decide in this case of Campbell v. Beaumont.

The above cases, as well as Norris v. Beyea (13 N. Y. 286); Bundy v. Bundy (38 id., 410); Cohen v. Cohen (4 Redf., 48), have been decided since the enactment of the revised statutes and are referred to by the counsel for Mrs. Simpson to establish the rule that where a testator has made an unqualified bequest or devise and has thus evinced his intention to give the first taker the right to use the entire estate for his own benefit with a limitation over to some other person, such limitation over is void as being repugnant to the absolute control and right of the first taker.

The cases of Jackson v. Bull (10 Johns., 18), Westcott v. Cady (5 Johns. Ch., 334), Hill v. Hill (4 Barb., 419), Van Horne v Campbell (100 N. Y , 287) were either decided or construed wills, drawn and probated before the enactment of the Revised Statutes.

Under the common law the language of the “second” provision, which gives to the first taker the right of absolute disposition, might render a subsequent limitation repugnant and void.

The Revised Statutes, however, have changed this rule. Sections 31 and 33 (vol. 3, 7th ed., page 2178) provide as follows:

Sec. 32. “No expectant estate can be defeated or barred by an alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger or otherwise.

Sec. 33. “The last preceding section shall, not be construed to prevent an expectant estate from, being defeated in any manner or by any act or means which the party creating such estate shall in the creation thereof have provided for or authorized, nor shall an expectant estate thus liable to be defeated be on that ground adjudged void in its creation.”

By section 2 (vol. 3, 7th ed., Rev. Stat., page 2256) the rule stated in the above provisions as to future estates in lands is made applicable to personal property and a remainder over may be limited upon such a bequest. Smith v. Van Ostrand, 64 N.Y., 278; Norris v. Beyea, 13 id., 273; Manice v. Manice, 43 id., 382.

The estate intended to be created here was a contingent future remainder, and under the above provisions of the Revised Statutes was such an estate as the testatrix had the right to create, and when the defeated contingency had been rendered impossible by the death of the first taker, the husband, then the daughter, Mrs. French, had the right to immediate possession.

The “second” provision of this will provides “and wish my said husband to do with said property as he shall think best during his life-time.” And the “fourth” provision, where she gives her own construction to the will, provides: “I wish it to be distinctly understood that my said husband may use so much of my real and personal property as he may wish to during his life-time, and if at his death there be the sum of $8,000 remaining in his hands that that amount be paid to my daughter, Mrs. F. A. Churchill.”

These clauses limit the disposition of the estate by her husband to his life-time; during that period he has the right to use and dispose of the whole estate, and this right is not limited to his maintenance and support.

He may provide himself with the comforts and luxuries of life with anything that will gratify his appetites or his tastes, but after she has thus made full and ample provision for the comfort of her surviving husband, even to the full measure of her estate, she, by the same instrument, disposes of what shall remain, if any there be, and for reasons only known to herself, gave the same to one of her two daughters.

It is plain that the testatrix did not intend that her husband should have any other right in or control over her property than to use so much of it as he desired during his life-time. She, herself, by the same will under which the husband acquires the right to use and enjoy the whole, if he so desires, provides and directs where the balance left at his death, to the amount of $8,000, shaH go, viz: To her daughter, plainly implying that her husband, while he might diminish the estate, even to its entire exhaustion, must do so during his life-time. If after all his wants have been supplied and his tastes gratified, any remained unexpended, that remainder he cannot dispose of by will.

This view of this case seems to be sustained by numerous decisions in this and other states. Terry v. Wiggins, 47 N. Y., 512; Greyston v. Clark, 41 Hun, 125; Flanagan v. Flanagan, 8 Abb., N. C., 413; Colt v. Heard, 10 Hun, 189; Wager v. Wager, 96 N. Y., 164; Burleigh v. Clough, 52 N. H., 267; Smith v. Bell, 6 Peters, U. S., 68.

Some of the cases construing bequests similar to the one in this will (Smith v. Van Ostrand, 64 N. Y., 278; Wright v. Miller, 8 id., 24; Bell v. Warn, 4 Hun, 406; Thomas v. Pardee, 12 id., 151), in sustaining their validity base the decision upon the fact that the first taker is given the right to use the whole estate for maintenance and support. That such, at this time, is the settled law, is unquestioned, but it seems to me too narrow and technical, for in some of these same cases it is also held that the first taker has the right to the absolute possession of the estate during fife, and what interested party or court will assume to dictate whether such first taker shall pay one dollar or ten dollars per day for board; whether he shall pay fifteen dollars or five hundred dollars for a suit of clothes; whether the.walls of his apartments shall be hare or covered with pictures and. paintings. of an expensive kind, and purchased to gratify his tastes.

The decisions may name maintenance and support as. the ground, but when they give such first taker the possession of the property their effect is to permit such first taker to dispose of the entire estate either for his maintenance, support, comfort, taste or fancy, and makes him the sole judge.

I am of the opinion that the true rule and reason is that given by Judge Peckham in Grayston v. Clark (supra), viz: That a contingent future remainder, or estate, is authorized by the Revised Statutes and is valid even though the first taker is permitted to dispose of the whole during his lifetime for purposes other than his maintenance ana support, and thus by his will or volition defeat such contingent estate.

The construction asked for by the contestant requires that much more than one-half of this will, in which she makes provision for her daughter be entirely ignored and allow the provision she makes for her husband to stand.

_ Such was not the intention of the testatrix, andas the provision made for her daughter is authorized by the Revised Statutes, effect must be given to the whole will.

My conclusions therefore are, that the plain intention of the testatrix, as gathered from the whole will, was that her husband should have the right during his life to use the estate even to its exhaustion, and for purposes other than his support and maintenance, but if at his decease any remained, this remainder, to the amount of $8,000, her husband should not dispose of by will, but she herself bequeathed it to her daughter, Mrs. F. A. French.

That the testatrix had the right, under the Revised Statutes, to create by will a contingent future remainder, or estate, and by the same will authorize or permit the first taker to do some act which would defeat such future estate.

That John Hitchcock, the husband and first taker, having died leaving unexpended the portion of Phebe Hitchcock’s property mentioned and described in schedules A. and B. of the account in this matter subject to the expenses of administration, and such sum being less than $8,000, the same belongs to Mrs. Frances A. French, under the “ third ” and “fourth” provisions of the will, and a decree will be entered accordingly.

Costs of this accounting to be taxed by the surrogate and paid out of the estate, are allowed to the executrix.  