
    Lina Kurtz, Individually, and as Administratrix, etc., of Frederick Wiechmann, Deceased, Appellant, v. Carl Frederick Wiechmann, Appellant, Impleaded with William Kreutzer and Others, Respondents.
    
      'Will — gift in one clause of an estate in fee and in a subsequent clause of estates in remainder, to the same person, in the same property —parties to an action of partition may litigate adverse claims therein.
    
    The will of a testator provided, “ Third. All the residue and remainder of my estate, both real and personal, I give, devise and bequeath to my beloved wife, Mary Wieohmann, to be hers in fee simple absolutely and forever, with full power to sell and convey, buy and discharge any and all matters as she sees fit. Fourth. After the death of my said wife, the remainder of my estate is to be divided in halves, one-half is to be divided between the legal heirs on my side, and the other half between the legal heirs of my wife’s, share and share alike.”
    
      
      Meld, that the testator’s widow did not take an estate in fee simple absolute in the residuary estate, but only a life interest therein with the powers specified in the will.
    That the rule that an absolute estate given in one part of a will in clear and decisive terms cannot be cut down or limited to a life estate by a subsequent part of a will, unless the part providing for the life estate is expressed in as clear and decisive language as the part giving the absolute estate, did not interfere with this construction, the intention in the 4th clause to limit the estate of the widow to a life estate being as clearly expressed as the gift to her of the fee in the 3d clause of the will.
    Under section 1543 of the Code of Civil Procedure, the adverse claims of persons who are necessary parties to an action of partition may be litigated in the action.
    Appeal by the plaintiff, Lina Kurtz, individually, and as administratrix, etc., of Frederick Wieehmann, deceased, and by Carl Frederick Wieehmann, from a judgment of the Supreme Court in favor of the defendants Kreutzer, entered in the office of the clerk of the county of Monroe on the 26th day of December, 1901, upon the decision of the court rendered after a trial at the Monroe Special Term.
    
      Everett 0. Gibbs and Herbert J. Stull, for the appellants.
    
      Alexander E. Ifenzie, for the respondents Kreutzer.
   Williams, J.:

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide event.

The action was for the partition of real estate. The appellants •claim that they have interests in the property under the will of plaintiff’s testator, Frederick Wieehmann.

The respondents, the Kreutzers, claim they are the sole owners of the property under the will of Frederick Wieehmann and his widow, Mary Wieehmann.

Frederick Wieehmann died September 6, 1890, leaving a will and leaving a widow Mary. The widow was made executrix, the will was admitted to probate, the estate was administered and a judiciahsettlement had July 20, 1892, the decree showing that after paying debts, funeral expenses and expenses of administration and ■$2,000 in specific legacies, there remained $2,374.25. This fund, •or some part of it, ivas in October 1893, put into the real estate in question and the widow took a deed thereof in her own name, which deed she held at her death May 15, 1899. She left a - will under which all her interest in the property, if any, passsed to the Kruetzers, the respondents; the appellants were heirs of Frederick Weichmann.

The question involved here is whether under the will of Frederick Wiechmann his widow Mary took the residuary of his estate absolutely or merely a life use thereof, with remainder over to the persons referred to in the will, some of whom were the appellants.

If she took absolutely, then appellants have no interest in the real property in question. If she took only a lÁfe use then appellants apparently have some interest therein, enabling plaintiff to maintain this action.

The will, after providing for the payment of debts, funeral expenses, and expenses of administration,

First. Gave Lina Kurtz, or her children $1,000.

Second. Gave the children of Carl Wiechmann $1,000. And now we quote.

'■‘■Third. All the residue and remainder of my estate, both real and personal, I give, devise and bequeath to my beloved wife, Mary Wiechmann, to be liers in fee simple absolutely and forever, with ■full power to sell and convey, buy and' discharge any and all matters as she sees fit.

‘■‘■Fourth. After the death of my said wife, the remainder of my estate is to be divided in halves, one half is to be divided between the legal heirs on my side, and the other half between the legal heirs of my wife’s, share and share alike,” and then- the wife was named as executrix, and all former wills were revoked. The will was made a few months only before death.

The question arises under the 3d and 4th clauses of the will.

The most important principle in the construction of wills is that. the intention of the testator, as expressed in the will, should control, if not inconsistent with rules of law. The will is emphatically the will of the testator, the declaration by him of what shall become of his property after his-death. The property is his, he has a fight to' dispose of it as he desires, and it is, therefore, very proper that his intention, so far as it can be ascertained from the language of the will itself, should prevail. The 3d and 4th clauses of this will, read literally, are ambiguous and contradictory. The 3d clause gave the widow the residue of the property therein referred to absolutely. The 4th clause gave such part thereof as remained after the death -of the widow to other persons therein named. If effect is given to the 4th clause it cuts down what would otherwise be an absolute gift in the 3d clause to a life use. It can have no other effect, and unless such effect is given to it it is entirely without meaning and superfluous. More than this, if the gift under the 3d clause is to be regarded as absolute, then all the language therein following the words “ forever ’’ is meaningless and unnecessary. If the property became the widow’s absolutely at her husband’s death there was no occasion to add to that gift the words “ with full power to sell and convey,, buy and discharge any and all matters as she sees fit.” If the gift was of a life use of the property those words were very appropriate, as giving her a discretion in handling the property while she had it in her custody. So far as possible effect should be given to every part of a will the wdiole will should be read and considered together. The 4th clause was as much the language of the testator as the 3d was. The whole of the 3d clause was his language- and not the first part thereof alone.

It is very evident that the testator by the two clauses together intended to give his widow the full use of the property during her life, with the power specified in the 3d clause, and to give such part thereof as should remain after her death to the persons referred to in the 4th clause. The person who drew the will apparently did not appreciate fully the meaning of the terms used in the first part of the 3d clause, but, talcing the two clauses together, we have no difficulty in understanding what was intended to be accomplished by the will.

There is no legal rule which interferes with our giving effect to this evide.nt intention of the testator. The only rule suggested is the one relating to the cutting down .of an absolute estate given by the language of one part of a will by the language of a subsequent part thereof. This rule, correctly stated, however, is as follows: When an absolute estate is given in one part of a will in clear and decisive terms, such estate cannot be cut down or limited to a life use by a subsequent part of the will unless the part providing for a life estate is expressed in as clear and decisive language as the part giving the absolute estate. (Banzer v. Banzer, 156 N.Y. 429, and the cases therein referred to.)

In this case the 4th clause expresses-the intention to limit the estate of the widow to a life use and to give the remainder to other persons just as clearly as language can be made to do it. The rule referred to, therefore, in no way interferes with the construction given by us to the will. In this construction we are supported by a case in the United States Supreme Court very like the one we are considering. (Smith v. Bell, 6 Pet. 68), wherein the opinion was written by Chief Justice Marshall, and we are aware of no decision' to the contrary.

We conclude, therefore, that the widow took only a life use of the property under the 3d and 4th clauses of the will, and that plaintiff took an interest therein and in the property in question, which enabled her to maintain this action.

Under the provisions of the Code and the decisions of the court the questions arising in this case could be determined in the action of partition.

• The plaintiff, under the allegations in the complaint, was a tenant in common with the respondents. They were necessary parties to the action, and, therefore, the issues made by the pleadings could be litigated in the action under section 1543 of the Code of Civil Procedure. . (Satterlee v. Kobbe, 66 App. Div. 806, and cases therein referred to.)

The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide event.

Adams, P. J., and McLennan, J., concurred; Spring and ITiscook, JJ., concurred in result only.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  