
    In the Matter of Last Will of James McClure, Deceased.
    
      (Court of Appeals,
    
    
      Filed December 13, 1892.)
    
    Will—Coxstbuction. .
    Testator left him surviving a son, two daughters, and five grand-children. He was a man of average education and drew his own will, containing these words, “ I give and bequeath unto my beloved wife, Mary I. McClure, all my real estate owned by me of every name and discription; also all my pe;sonal property of every kind and nature; also my life insurance, stock and mortgages, to have and' to hold, with full power to collect all rents and income from the same, she to keep in repair and pay all taxes and insurance on the sanie, with full power to sell any or all such real estate with the consent of my executors should it be thought best for the estate; should she marry again then her right of dower only in my estate. I recommend she appoint a good agent to take charge of my real estate. I also give her discretionary power to give such sums of money to any, as she may think prudent, of my relatives.” There was no mention of children or grand-children, not even of the son living with him in the household. Held, that the widow takes only an estate for life in the real and personal property.
    Appeal from judgment of the supreme court, general term, third department, reversing decree of surrogate of Albany county. George H. Stevens, for app’lt; Francis H. Woods, for resp’t.
   Finch, J.

The testator’s will gives to his widow the whole of his real and personal property, either absolutely or for life; and which was his real meaning and intention becomes the single question in the present controversy. The will was written by himself, upon one of the ordinary printed blanks prepared for that purpose, and, so far as we know, without aid or advice from other sources. He was a tinsmith by trade, and had slowly and laboriously amassed a moderate fortune of about $96,000 in real estate and $68,000 of personal property. Nothing in his history or mode of life indicates that he possessed more than an average education and intelligence; and we must not expect to find in the instrument which he drew the accuracy and precision of legal experience and training. We may be sure that he used .words in their ordinary and prevailing sense, and construed his sentences with the usual ability of an intelligent artisan, but nothing more. At his death, his household comprised his wife and his son William, the latter of full age, and the former about sixty-eight. He had two daughters living, each of whom was married, and five grandchildren, who were all minors and children of two of his deceased sons. They lived with and were supported by their mothers, who bad no property of their own and were dependent upon their personal labor for a livelihood. The testator seems not to have contributed to their support and had no great liking for them, as the widow intimates in her evidence.

The devise and bequest to her is in these words: “I give and bequeath unto my beloved wife, Mary I. McClure, all my real estate owned by me of every name and description; also, all my personal property of every kind and nature; also, my life insurance, stocks and mortgages, to have and to hold, with full power to collect all rents and income from the same, she to keep in repair and pay all taxes and insurance on the same, with full power to sell any or all such real estate, with the consent of my executors, should it be thought best for the estate; should she marry again then her 2-ight of dower only in my estate. I recommend she appoint a good agent to take charge of my real estate. I also give her discretionary power to give such sums of money to any, as she may think prudent, of my relatives.” That is all there is of the will except that he appointed the widow executrix and Mr. Frothingham executor. There is no mention of children or grand- children, and not even of the son living with him in the household. _ _ _

_ _ _ It is quite apparent that there are inconsistent provisions in the testator’s disposition of his property. Some of them might possibly be reconciled with an absolute devise and bequest, but two of them cannot be. The provision which purports to confer upon the widow power to sell the real estate devised with the consent of the executors and if it should be thought best for the estate, is entirely inconsistent with a conscious intent to vest in her an absolute fee. To that an unrestrained power of disposition is essential and necessarily belongs. The testator well knew the fact He comprehended what his own absolute ownership of his land was, and that no power to sell it was necessary to be conferred by any body or from any direction. He understood that the power was his and inherent in his ownership, and if he had supposed that he was giving a similar ownership to his wife it is not conceivable that he would have solemnly conferred a power of sale which she already had; still less that he would have destroyed the character of the devise by making the devisee’s right of disposition dependent upon the consent of the executors and conditioned upon their judgment that it should be “best for the estate.” Then, too, the discretionary power which he confers to give such sums of money as she may think prudent to any of his relatives, is equally inconsistent with a conscious knowledge, on his part, that he had already given her his whole property absolutely; that she could do as she pleased with it; that she already had power to give what she chose not only to his relatives, but to any one else whom she might desire to benefit.

On the other hand, these careful and repeated grants of power to sell the real and give away portions of the personal estate are entirely consistent with an intention to vest in the widow a life estate merely. To such an estate a power of sale or authority to give are natural and appropriate, and the restraints which narrow and hamper the power are consistent with the character of the estate granted.

Then, too, the further powers and directions which accompany the devise, and which, if not vitally inconsistent with it, are at least superfluous, unnatural and unexpected, become reasonable, and have adequate explanation on the theory of a life estate. The testator gives full power to collect all rents and income, requires her to make repairs and pay all taxes and insurance. Of course he knew if she became absolute owner that she had authority to collect rents and income and did not need that he should specially confer it; that the duty of making repairs and paying taxes and insurance would rest on her in her own interest ; and beyond that he further knew that his requirement would have no force or effect, and that she could omit repairs and neglect to pay taxes, and that without the least regard to his idle command. On the other hand, he may not have known, and probably did not know, the legal relation of a tenant for life to a remainderman, or that the bare creation of the estate made his requirements to some extent unnecessary, and so he chose to make her duty sure and clear whatever the legal rule might be.

The interpretation of the will presents to us, therefore, the alternative of cutting off provisions repugnant to an absolute ownership, or allowing them to qualify the estate primarily given. It is quite true that where there is a primary devise so framed as to convey a distinct and definite estate it will not be cut down by later words which are merely ambiguous and inferential, Clarke v. Leupp, 88 N. Y., 231, and that if the gift here in question had stopped with the words “ to have and to hold ” it would have been sufficient to have passed an absolute estate. But it did not stop there, and some of the after words are not at all ambiguous. They are clearly repugnant, for they take away the absolute power of disposition, or they mean nothing. On the other hand, the words of primary devise are not inconsistent with a life estate, Terry v. Wiggins, 47 N. Y., 515, and the theory of such an estate intended harmonizes and makes consistent all the words of the testator.

An attempt at such harmony is made in behalf of an absolute ‘ fee by calling the inconsistent provisions merely words of caution or advice. But a formal grant of a power of sale upon express conditions is something very different from caution or advice, and it is pointed out to us that when the testator meant merely to recommend the appointment of an agent he used that exact word.

I think that what was in the testator’s mind is indicated also by one of his expressions limiting the power of sale which he gave. It was to be exercised with the consent of the executors, and “should it be thought best for the estate.” He contemplates the estate as remaining in the widow’s hands, and as the subject of care and preservation, and the form of which was not to be changed except upon the judgment of the executors; a direction compatible with and appropriate to a life estate, but singularly inappropriate to an estate in fee, unless it be deemed, what it is not, a mere sentence of advice.

The fact is not to be overlooked that the construction of a life estate involves a partial intestacy, and that the courts presume against such an intention. But this will clearly and forcibly rebuts that presumption, for it shows that in one emergency the testator did mean and contemplate intestacy to even a greater extent. He says of his wife, “should she marry again, then her right of dower only in my estate.” That possible emergency came into his mind, and he cut her estate down to a mere dower, leaving the fee undisposed of, and consciously committing its devolution to the laws of descent. If lie contemplated intestacy in one event, and was satisfied to permit its occurrence, by what logic do we say that he was not conscious of and contented with the lesser intestacy following upon the close of the life tenancy ?

And so, taking the whole will together, and seeking, as it is our duty to do, to harmonize all its provisions, and give them effect, we are led to the conclusion that the widow takes only an estate for life in the real and personal property.

The judgment of the general term should be affirmed, with costs of both parties in all the courts payable out of the estate.

All concur. 
      
       Affirming 44 St. Rep., 729.
     