
    Oothout et al. v. Rogers et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 4, 1891.)
    Construction of Will—Nature of Estate Devised.
    By one clause of his will, testator devised land to a daughter in fee, and made several bequests of moneys, payable in installments, to all his daughters. By a subsequent clause he declared that the “devises and bequests” so made were for the absolute use of his daughters during their lives, and, after the decease of either of them, then to their surviving children, “as the said annual sums, devises, and bequests might remain in the hands and under the control of” his executors. Held, that the latter clause, notwithstanding the use of the word “devise” did not show a sufficiently clear intention to cut down to a life-estate the absolute fee devised by the prior clause, and should be construed as affecting the personalty only.
    Appeal from circuit court, Schoharie county.
    Action by William V. Oothout and others against Mary Rogers and Benjamin Roger's, to recover the possession of real estate. There was judgment for plaintiffs, and the defendants appeal.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      L. W. Baxter, for appellants. W. B. Edwards, for respondents.
   Learned, P. J.

This is an action of ejectment, and was tried before the court. The court decided in favor of the defendants, and the plaintiffs appeal. The question involved arises solely on the construction to be given to the will of Samuel Hodson, who died in 1853, seised in fee of the premises, and especially on the construction to be given to the fourth and sixth clauses. By the third clause the testator gave to his daughter Elizabeth a house “to her own proper use and behoof forever;” that, and also $1,400, to be paid in several installments of $100, and interest on the unpaid sum, until the whole of the bequest is extinguished. By the fourth, he gave to his daughter Sarah the house and lot in question, “to her own proper use and behoof forever;” and also a similar bequest of $1,400, payable in the same manner above specified. By the sixth, he gave to his daughter Louisa $1,385, payable in two annual installments, and the interest. The clause then continues: “It is hereby understood that the devises and bequests made respectively to my daughters Elizabeth, Sarah, and Louisa are made and are for the absolute use and control of each of them during their natural lives, and, after the decease of either of them, then to their surviving children according to law, as the said annual sums, devises, and bequests may remain in the hands and under the control of either of my executors, at the free election of either of my said daughters, and upon such terms as either of my daughters may make with such executors.” Sarah Oothout, the devisee named in the fourth clause, went into possession of the premises at the death of her father. Subsequently she conveyed the premises, and the defendants are in possession under that conveyance, and under subsequent conveyance and wills. She and her grantees have been in possession ever since her father’s death. She died in 1879. The plaintiffs are her only children, and they commenced this action in 1889. They claim that by the will Sarah Oothout took only a life-estate, and that the fee in the remainder went to them on her death. It will be seen that the question is what effect the sixth clause had upon the fourth clause, which unquestionably gave Sarah a fee. “It is well settled by a. long succession of well-considered cases that, when the words of a will in the first instance clearly indicate a disposition in the testator to give the entire interest, use, and benefit of the estate absolutely to the donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words inferential in their intent. ” Clarke v. Leupp, 88 N. Y. 228. See, also, Campbell v. Beaumont, 91 N. Y. 464. It is unnecessary to cite other cases, but the principle is better and more concisely expressed in Lambe v. Eames, L. R. 10 Eq. 267: “Whenever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention to cut down the absolute gift as the prior part does to make it.” Yearly the same language is found in Byrnes v. Stilwell, 103 N. Y. 460, 9 N. E. Rep. 241. In the present case we think it is plain to what the testator referred in this sixth clause. To Elizabeth and Sarah he had given, respectively, in fee a lot of land. To each of them, and to Louisa, he had given a pecuniary bequest. All these bequests were payable in installments. The testator considered the question to whom these installments should go, in case either of the daughters should die before all of the installments should have been paid.

Should they be a part of the estate of the deceased daughters, or should they go to her children? To settle'this, he provided that these unpaid installments should go “to their surviving children, respectively, according to law, as the said annual sums, devises, and bequests may remain in the hands and under the control of either of my executors.” When he spoke of annual sums, devises, and bequests remaining in the hands of executors, he had no reference to land, notwithstanding the use of the word “devises.” He plainly had reference to the moneys which were in the hands of the executors, and which were to be paid annually by installments. There were no annual devises, accurately speaking. This use of the word “devises” in the middle of the sentence shows what it means in the beginning of the same sentence, where he says: “It is hereby understood that the devises and bequests made, respectively, to my daughters, ” etc. The beginning of the sentence is not to be separated from the end. We must look at the sentence as a whole, to understand what was the testator’s meaning. Of course, it is well known that, in accurate language, the word “devise” applies to land only. It is, however, sometimes inaccurately applied to personal property. Bouv. Law Diet. “Sub Voce.” How, it is plain that the third and fourth clauses gave an absolute fee in the respective lots of Elizabeth and Sarah. The question, then, must be, under the rule above cited, whether this sentence-in the sixth clause shows as clear an intention to cut down those estates as the prior part of the will did to make them. It is evident that the subject of this sentence was some property which was not only under the control of the executors, but about which the daughters could make terms with the executors. This is intelligible if it applies to the bequests, but meaningless if it applies to land. And that the whole sentence refers to personal property is more apparent from the circumstance that the testator speaks of the devises and bequests made to Louisa as well as to Elizabeth and Sarah. There was no gift of land to Louisa. When, therefore, he spoke of her devises and bequests, he could have referred only to the bequests of personal property. We have examined the cases cited by the plaintiffs in support of their construction of the will. It does not seem to us useful to comment upon them. In every case the peculiar language of the will in question is to be construed. And it is seldom, if ever, that the language is the same in two instances. It seems to us, taking the whole of the sentence in the sixth clause, on which the plaintiffs rely, and construing it, in connection with the rest of the will, that the testator did not intend to cut down the absolute devises of land contained in the third and fourth clauses. As to the misuse of the word “devises” in this sentence, we can only, in the language of the court of appeals, “ascribe to the conveyancer inexactitude of expression.” The judgment should be affirmed, with Costs. All concur.  