
    Elizabeth J. Weber, Resp’t, v. John N. Lester et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    W ills—Devise—Comstrtjction.
    A testatrix by her will gave to defendant Lester for life twenty acres of land in a certain location, to be set off to him as nearly as possible in the form of a square, “ or such- other twenty acres of any lands of which I may die seized as may be agreed upon by and between ” him and the executors, with remainder to his children, if any; if not, to be divided with the residue. The twenty acres named, and specifically described, was sold on foreclosure two years prior to testatrix death, and the executors declined to agree as to the substitution of other land in its stead. Held, that it was not the intention of testatrix that this devisee should surely, in the event that has occurred, become entitled to any other twenty acres; there was no absolute devise of any other, or positive or mandatory directions to substitute any other twenty acres for those first named, but simply a power to agree on such a substitution; that whether the parties shall so agree was optional with them, and the court has no power to compel them to do so, and hence that neither Lester nor his children have any title or interest in the lands of testatrix.
    (Corlett, J., dissents)
    Motion for a new trial under § 1001 of the Code on a case and exceptions on appeal from .interlocutory judgment.
    
      Action to construe the will of Christiana Farthing, deceased, and for partition of real estate devised thereby.
    The opinion at special term was as follows:
    Daniels, J.—By that part of the will of Christiana Farthing that has now been made the subject of controversy, she devised to her nephew, the defendant, John N. Lester, “ for and during his natural life, but no longer, twenty (20) acres of land, situate, lying and being in said town of West Seneca, at the southwest corner of Abbott road and Wells road, so called, to be divided and set off to him as soon after my death as the same can well be done, in as nearly the form of a square as may be, or such other twenty (20) acres of any land of which I may die seized, as may be agreed upon between my said nephew and the executors of this my last will and testament; and I hereby will and direct that said executors shall execute and make, at the expense of my estate, and deliver to said John N. Lester, a proper and sufficient instrument in writing, under their hands and seals, and by them duly acknowledged so as to entitle the same to be recorded, in and by which they shall designate and describe, by metes and bounds, the twenty (20) acres of land so set off and allowed to John FT. Lester.” The testatrix further directed that the twenty acres in this manner mentioned should become and be disposed of as part of her residuary estate, in case her nephew, John N. Lester, should die before or after her own decease, without lawful issue; but in case he died leaving lawful issue, then the twenty (20) acres were devised in remainder to such issue. He has survived the testatrix, and also has lawful issue, who are defendants in this action.
    Butafter the making of her will she made and executed a mortgage upon the land, which included the twenty acres at the southwest corner of the Abbott and Wells roads, and default having been made in the payment of the debt secured by the mortgage, it was foreclosed, and the land described in it was sold under the judgment in the foreclosure action to a person other than the testatrix. This sale was made in 1879, near two years before her own decease. It is entirely clear that this incumbrance, foreclosure and sale deprived the devisee, John N. Lester, and his issue, of the twenty acres referred to at the southwest corner of Abbott and Wells roads. As to that there can be no possible question, and no absolute right was devised to him or them to any other twenty acres of land owned by her.. Neither did she devise to him or them any other twenty acres in case her title to the land at the corner of these streets should be for any cause extinguished. But what she did direct was, that he should have any other twenty acres of land than those in this manner mentioned which he and her executors might agree upon, of which she might die seized.
    She gave no positive or mandatory directions to substitute any other twenty acres for those first mentioned by her. Neither did she direct her executors to set off any other twenty acres in case her title to those at the corner of these roads should, for any cause, fail. If she had done either, then the direction could be carried into effect by the decree of a court of equity. That would have created an imperative power in trust, and such powers the statute has empowered this court to maintain and enforce. But all that the testatrix has done by way of substituting another for the twenty acres by her described has been to empower the executors and her nephew to agree to make that substitution.
    She has provided the power without directing its execution. Whether it shall be executed or not has been left to the mere volition of these parties. It is the power to agree only, and the court has no authority to adjudge that they shall agree, as long as the testatrix has not directed that they must, or in any other manner created the obligation that they shall agree. Whether they should agree has been left optional. That is the extent of the power'created, and the court has received no authority whatever to extend it. But its duty consists wholly in maintaining and carrying into effect the intention as it has been disclosed. For a power whose execution or non-execution has been expressly made to depend upon the will of the grantee has been excepted from the compulsory interference of the court. 3 R. S., 7th ed., 2191, § 96. It is the other classes of powers that are mandatory and the court has been empowered to enforce.
    This conclusion is more in harmony with the probable intention of the testatrix than any other that can be placed, either upon her language or conduct, for she must have been aware of the sale in the foreclosure suit of the twenty acres at the corner of the two roads, under the mortgage placed by herself upon it. And if she had intended that her nephew should certainly have twenty acres of her other land in place of these, she would probably have indicated the existence of that 'intention by some subsequent and equivalent testamentary act. That she did not do, and the omission confirms the conclusion that it was not her intention that this devisee should surely, in the event that occurred, still become entitled to any other twenty acres. The executors ¡having declined to make this agreement, the court has not been invested with authority compulsorily obliging them to enter into it. This is in harmony with the manner in which the testatrix has expressed and defined the power which might be exercised, and conforms to the statute as well as decided authorities. Vandemark v. Vandemark, 26 Barb., 416; McNaughton v. McNaughton, 34 N. Y., 201; Hull v. Hull, 24 id., 647.
    Judgment will, therefore, be directed to the effect that neither John ¡N. Lester, or his children, have any title or interest in the land to be affected by this action. The form and findings will be settled on notice to the attorneys for the defendants.
    
      Fullerton, Becker & Hazel, for app’lts; George Wadsworth and F. G. Robbins, for resp’t and Lawson, infants.
   Motion for a new trial denied, with costs, and final judgment ordered in accordance with interlocutory judgment on opinion of Daniels, J., delivered at special term.

Dwight, P. J., and Macomber, J., concur.

Oorlett, J.

(dissenting).—Christiana Farthing made her will in June, 1871. She died in September, 1881. The will was admitted to probate. In 1888 the plaintiff brought an action for the construction of the will. The case was tried at special term, in July, 1889. The. decision was in accordance with the respondent’s contention, and the defendants moved for a new trial under § 1001 of the Code of Civil Procedure.

The provisions of the will in controversy are : “ Second, I give and devise to my nephew, John E". Lester, for and during his natural life, but no longer, twenty (20) acres of land situate, lying and being in the town of West Seneca, and the southwest corner of Abbott road and Wells road, so called, to be divided and set off to him as soon after my death as the same can be done, in as nearly the form of a square as may be, or such other twenty (20) acres of any lands of which I may die seized as may be agreed upon by and between my said nephew and the executors of this my last will and testament; and I hereby will and direct that said executors shall make and execute at the expense of my estate, and deliver to said John ET. Lester, a proper and sufficient instrument in writing under their hands and seals, by them duly acknowledged so as to entitle the same to be recorded, in and. by which they shall designate and describe by metes and bounds the twenty (20) acres of land as set off and allotted to said John ET. Lester.

“In case said John ET. Lester shall die before I do, leaving no lawful issue or descendant him surviving, then and in such case I will and direct the said twenty (20) acres of land which he will take if living at the time of my death, under and by virtue hereof, shall be and be considered a part of my residuary estate, and shall be disposed of and pass as such under and by virtue of the fourth clause of this my last will and testament.

“ In case said John E. Lester survives me, and dies without lawful issue him surviving, then and in such case I will and direct that said twenty acres of land upon his death shall be and be considered a part of my residuary estate, and, as such, shall be disposed of, and pass as such under and by virtue of the fourth clause of this my last will and testament.

“In case said John ET. Lester shall die leaving lawful issue descendant or descendants him surviving, then and in such case I give and devise said twenty acres of land to his lawful issue, descendant or descendants, equally if there be more than one, share and share alike ; but if there be but one, he or she shall have and take the whole of said twenty acres of land.”

John B. Weber and William W. Lawson were appointed executors of the will. Lawson died in January, 1888, leaving Weber the sole executor. The twenty acres on the Abbott road were sold on the foreclosure of a mortgage about two years before the death of the testatrix, but she left other real estate. The question here is' whether Lester can obtain the twenty acres out of the other lands owned by the testatrix at the time of her death.

The rule is familiar that where upon examination of a will as ■a whole the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt or incorrect modes of expression, the court may, and it is its duty to subordinate its language to the intention; it may reject words and limitations, supply or transpose them to get at the correct meaning. Phillips et al. v. Davies et al., 92 N. Y., 199; Wager v. Wager, 96 id., 164.

The testatrix at the time of making her will owned considerable real estate and personal property, all of which she disposed of by will. It is obvious that she intended to give Lester the use of twenty acres of land during his lifetime. Her primary purpose was to devise to him the twenty acres on the Abbott road, but she authorized an equal amount to be agreed upon by her executors and him out of other lands of which she might die seized. There is no room for claim that the testatrix intended that Lester, in any event, should have the use of forty acres. Every clause in the will limits the amount to twenty. Under such circumstances, if for any reason the Abbott road land was not available, it was the express intention of the testatrix to substitute another twenty acres in its place. It is entirely immaterial whether at the time of her death she owned the Abbott road land or not Power was given in the way directed to agree upon another twenty acres, which would involve an abandonment of the first; if she did not own the Abbott road land, then her purpose was to devise another twenty acres out of the lands of which she died seized. If he cannot insist upon an allotment of another twenty acres, then he gets nothing. It was obviously not her intention that in any contingency he should lose the use of twenty acres of land during his lifetime.

The suggestion of the special term that the executor could not be compelled to agree with Lester as to another twenty acres, must depend upon the construction of the will. If the use of twenty acres was devised by the testatrix, the court has inherent power to direct a conveyance. Williams v. Williams, 4 Seld., 524; Owens v. Mis. Society, 14 N. Y., 380-408.

The purpose of the testatrix cannot be defeated by a refusal on the part of the executor to agree with Lester as to the particular twenty acres which should be set off or assigned to him. If necessary the court will compel him to agree. If not, it could adjudge an allotment without his intervention and against his protest, either of the land or its proceeds, in event of a sale.

It is the duty of the court to give full effect to the intent of the testatrix. The respondent’s contention and the decision at special term would utterly defeat such intention. The decision at special term should be set aside and a decree entered in accordance with the views stated.

Motion for new trial denied and interlocutory judgment affirmed.  