
    THOMAS v. WOLFORD.
    
      N. Y. Supreme Court, First Department, General Term;
    June, 1888.
    
      Wills; gift for life with gift over of what may be left; construction.] This will contained the following clause:
    “ After all my lawful debts are paid and discharged, I give and bequeath to my wife [naming herJ all of my real and personal estate that I may die possessed of, during her lifetime, and at my wife’s death, the property, should there be any left, to be divided among the children or their heirs,”-—held to give the widow during her life the power of disposing of the corpus of the estate with a view to her personal use and maintenance, and that upon her death such property as had not been consumed by her went to the testator’s children.*
    * The frequency with which, in these days, testators make wills of the nature of that in this case and Flanagan ®. Flanagan, 8 Abb. AT. 0. 413, render these authorities quite important to the practitioner. The old technical rules of interpretation have now given way to the substantial rule that the court will search for the intention of the testator as the controlling means of construction; and if it appears that he intended to give whatever the legatee for life may not at death have disposed of, a gift over of that residue will be sustained.
    There is no doubt that a gift expressly limited for life, coupled with an absolute and unqualified power of disposal, suffices, if there be nothing in the will inconsistent with it, to give the fee or absolute ownership; because it is equivalent to a gift to the legatee and his assigns.
    The question illustrated in the text arises where there is beside such gift and power, a gift over of what may be undisposed of under the power.
    If the primary gift is an absolute and express gift of the fee, the gift over is void for repugnance. If the primary gift is ambiguous in this respect, or if the power is not unqualified, the gift over is sustainable in law. The rule which allows the rejection of the gift over for repugnance, involves two principal elements or conditions: 1. A general or indefinite gift, and, 2. Coupled with it an absolute power of disposition.
    
      Kent states' the rule and its limitation as follows : [4 Comm. 536.] “If an estate be given to a person generally or indefinitely, with a power of disposition, it carries a fee ; unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case, the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee.”
    
      Bedfleld [2 Redf. on Wills, 277, (33) ] states, and illustrates the rule thus : “It is a settled rule of American, as well as English law, that where the first devisee has the absolute right to dispose of the property in his own unlimited discretion, and, not a mere power of appointment among certain specified persons or classes, any estate over is void as being inconsistent with the first gift. Thus a ■ devise to the testator’s son, P., 'of certain real and personal estate, and to his heirs and assigns forever, adding that if P. should die and leave no lawful heirs, what estate he should leave to be divided between another son and a grandson of the testator, naming them, it was held the devise over was void as being inconsistent with the absolute interest in the first devisee. This exclusion of the devise over depends upon whether the first taker has the absolute right to dispose of the property.”
    
      Schouler on Wills (p. 572, § 559) says : “The decisions on such points seem sometimes to run closely together; and intention affords the only sure clue to their course. A bequest of non-consumable property to the testator’s wife for her own use, benefit and disposal absolutely, and remainder after her death to a son, has been held to create a life estate in the wife, and a vested remainder in the child; simply because the context of the will in controversy made it clear that thp testator intended to make a present provision for the one and a future provision for the other.” [The case here referred to is Smith v. Bell, 6 Pet. 68, an important authority, the soundness of which is recognized in Stowell ». Hastings, 59 Vt. 494, 497.]
    Mr. Schouler adds : “ On the other hand, an absolute gift of personal property to the wife, together with the life income of real estate, and, 1 at her decease, the property remaining to be divided equally ’ among the children, has been pronounced rather an absolute gift of personalty to the wife with full right to appropriate the residue to herself after the estate was settled ; for the gift clearly expressed in positive terms was not to be cut down by any doubtful inference- from subsequent words. Where, however, the power of disposal accompanies a bequest or devise of a mere life estate, the power is limited to such disposition as a tenant for life can make, unless other words clearly indicate that a larger power was intended."
    
      Appeal from a judgment of the Special Term construing a will.
    , Eliza Jane Thomas, as executrix of Daniel Webster Thomas, deceased, brought this action against the heirs at law and next of kin of Daniel Webster Thomas, to obtain a, judicial construction of the following clause of his will:
    These principles appear to be fully recognized in the recent case of Stowell v. Hastings, 59 Vt. 494, where it was held that under a gift to the wife “ for her benefit and support, to use and dispose of as she may think proper,” she took an absolute estate, and that a further direction that if any of the estate should be left in her possession at her death, it should be equally divided between testator’s brothers and sisters, was void for repugnance. The court put their decision on the ground that the gift to the wife for her “ benefit,” was equivalent to an unlimited power of disposal, because the word “benefit,” is synonymous with “ advantage, profit, gain, account, interest.”
    After adverting to the rule that a limitation over, after a fee is void for repugnance, the court thus lucidly explained the extent and qualifications of the rule :
    “ Where the jus disponendi, is conditional, as in those cases where the property as given for support only, with power over the principal for that purpose, or the estate given the first taker is one for life only, a different rule may prevail and the gift in remainder may be valid, for, in such cases, no absolute estate is given the first taker. In determining what estate is given the first taker, the whole will should be considered, and all the clauses construed together. Even in those cases where an absolute estate is in terms given, if subsequent passages unequivocally show that the testator meant the legatee to take a life interest only, the prior gift is restricted accordingly.”
    In applying the principal to the will then before them, the court say : “There is a gift to the first taker, and another in remainder. The clauses should be construed together and effect given to both, if consistent with the rules of law. Where it is clear, considering the language used, that the testator intended the life estate in the first taker, or a use of the bequest for support only, or any other limited purpose, there is no difficulty in carrying out the full intent of the testator by giving force after the first estate is ended, to the clause creating the estate in remainder ; ” . . .
    After all my lawful debts are paid and discharged, I give and bequeath to my wife, Eliza J. Thomas, all of my real and personal estate that I may die possessed of, during her lifetime, and at my wife’s death, the property, should there be-any left, to be divided among the children or their heirs.” The action was tried at the Special Term, where the following opinion was rendered :
    “ The only devise of the property in question to the plaintiff was for her life. No words were nsecj in the will which would vest the fee of the property in the plaintiff, and the will contained no power of sale. Plaintiff had simply a life estate:
    “ The devise of the property over to the children, should there be any left, in the absence of any words showing, am intention to vest the fee or a power of disposition of the estate in the wife, could not be construed as enlarging the-estate of the wife. The words used could apply to the contingency of the property as not being sufficient to pay the mortgage then upon the property.
    The question presented is very different from a case ini which a testator makes a bequest of personal property with a direction that, if there is any left on the death of the legatee, the remainder shall be paid to an individual named, or where-the fee of real estate is given to the devisees with a remainder over, because in such a case, by the terms used, the; whole title to the property vests, and that of necessity gives-power of disposition; but the testator in this case-expressly limited the estate granted to his wife to an estate for life.
    “I see no principle upon which plaintiff would be entitled to a decree as prayed for in the complaint. Defendant, must have judgment, therefore, dismissing the complaint. The guardian, ad litem, is entitled to costs.”
    From the judgment of the special term the executrix appealed to the general term.
    
      Pinney & Sterling, for the appellant, cited:
    Terry v. Wiggins, 47 N. Y. 512, 517; Flanagan v. Flanagan, 8 Abb, N. C. 413; Thurber v. Chambers, 66 N. Y. 48; Colt v. 
      Heard, 10 Run, 189; Herring v. Barrow, L. R. 13 Ch. Div. 144; Wells v. Seeley, 13 N. Y. State Rep. 239; Cohen v. Cohen, 4 Redf. 48; Clark v. Middleworth, 82 Ind. 240; Silvers, v. Canary, 109 Id. 267; Henderson v. Blackburn, 104 Ill. 227.
    
      Gherardi Davis, for the respondents.
    Mrs. Thomas has but a life interest in her deceased husband’s estate under the will (Greve v. Canary, 69 Iowa, 220; Jones v. Jones, 66 Wisc. 310; 28 N. W. Rep. 177; Smith v. Bell, 6 Pet. 68, 78; Knox v. Knox, 59 Wisc. 172 ; Goudie v. Johnston, 109 Ind. 427; Matter of Fernbacher, 17 Abb. N. C. 339; Bradly v. Westcott, 13 Vesey, Jr. 445; Brant v. Virginia Coal & Iron Co., 93. U. S. 326; Barrett v. Marsh, 126 Mass. 213; Giles v. Little, 104 U. S. 291; Green v. Hewitt, 97 Ill. 113; Livingston v. Murray, 68 N. Y. 485; Bibbens v. Potter, L. R. 10 Ch. D. 733; Gravenor v. Watkins, L. R. 6 C. P. 500; Herring v. Barrow, L. R. 14 Ch. Div. 263; Phillips v. Beal, 32 Beavan, 25; Constable v. Bull, 3 De G. & Sm. 411; Gifford v. Choate, 100 Mass. 343; Burleigh v. Clough, 52 N. H. 267; Harris v. Knapp, 21 Pick. Mass. 412; Matter of Surrogate of Cayuga, 46 Hun, 657; Wells v. Seeley, 13 N. Y. State Rep. 239; Crozier v. Bray, 39 Hun, 121; Henderson v. Blackburn, 104 Ill. 227). If the court decides that under the will Mrs. Thomas has the-power to dispose of the property, this power of disposal must be limited to her lifetime. She cannot dispose of it by will (Cohen v. Cohen, 4 Redf. 48; Flanagan v. Flanagan, 8 Abb. N. C. 413; Terry v. Wiggins, 47 N. Y.. 512). Whichever way the court construes the will the remainder over is valid (Greyston v. Clark, 41 Hun, 125; Crozier v. Bray, 39 Hun, 121; 3 R. S. [7 ed.] 2178, §§ 32, 33).
   Van Brunt, P. J.

The testator left a will which had been duly admitted to probate consisting of but a single paragraph, and the question arises upon the construction of that paragraph. He provides as follows: After all my lawful ■debts are paid and discharged, I give and bequeath to my wife, Eliza J. Thomas, all of my real and personal estate that I may die possessed of, during her lifetime, and at my wife’s ■death the property, should there be any left, to be divided .among the children or their heirs.”

The question presented is as to what was the intention of the testator in reference to the authority which his wife .should have in disposing of the estate, the enjoyment of which was bequeathed to her during her life. That a testator may devise his property to a person during life, giving ¡such person an additional power of disposal, without enlarging the estate to a fee, is well settled by the case of Terry v. Wiggins (47 N. Y. 512). In that case it was held that the life tenant did not have the fee, but had a power of disposal to be exercised during life and not at death.

In is claimed upon the part of the appellant that this was the estate which the widow of the testator took under the •devise in question, and the only point which it is necessary to •consider is : Was this the testator’s intention ?

That it was seems to be reasonably clear. There is a ■devise of the estate to the widow during her life, and a devise ■over to the children of that which might be left at her death. Here is expressed a clear intention that the widow shall have the power of disposing of the corpus of the estate with a view to her personal use and maintenance.

She has, therefore, during life, the power of disposition of ■the estate, the power to consume or dispose of it as might become expedient or necessary to secure for her its beneficial ■enjoyment, and upon her death such estate as had not been •consumed by her is devised to the children.

This intention, being one which under the cases cited is a legal one, should be carried out. It seems to be reasonably clear that it was the intention of the testator that' his wife should enjoy the full benefit which she could derive from this estate as long as she lived, and that whatever remained after such enjoyment should go to their children. The case-of Colt v. Heard (10 Hun, 189) seems to be singularly like the one at bar in the language used in the will.

Authorities have been cited from other States bearing upon this question, but they afford but little light. As the rules of construction of wills in the various States differ to a very great extent, the discusssion of the particular language-used in the will varies according to the rules prevailing in the courts of this State.

The intention of the testator is to govern, and if that intention is a legal one, full effect is to be given to it. It seems to us clear that the intention of the testator was that-his wife should have the full enjoyment of this estate during-her life, and whatever she did not consume was devised to their children.

This necessarily gave her a power of disposition, she being controlled" in the exercise of it by the purposes for which the estate was devised to her.

We think, therefore, that the learned judge in the court, below erred in coming to the conclusion that all that the widow took under this will was a life estate, with no power whatever of disposition. But we think that she did take such estate for life, with a power of disposition during life,,, and a remainder over what was left of the estate upon her death to their children.

Judgment ordered accordingly.

Beady and Daniels, JJ"., concurred. 
      
      Af£’g 2 Lans. 272.
     