
    Margaret Sweeney, Respondent, v. John O’R. Wilson, Maggie T. Wilson and James T. Wilson, Appellants, Impleaded with Others.
    
      Will—effect of a hequest of “ ail" a testators real estate upon property not mentioned in the will.
    
    A testator who died seized in equal shares with Ms sister of a lot in Rochester, subject to the life estate of their mother, left a will which did not mention this lot, but stated that he owned two lots in Buffalo, one of which had been conveyed to him by Adams & Clark, and the other by Hector McDonald; and. in its second clause contained a devise to his wife of “all” his real estate and property during her life, “ or so long as she shall remain unmarried, and after the death of my said wife to the four sons of my sister Julia Wilson,” equally. The third clause of his will directed that' “ in case my said wife shall marry, it is my purpose and will, and I hereby devise and bequeath to her the premises and real estate deeded to me by Adams & Clark, above mentioned, in fee, her heirs and assigns forever. And all her right and interest in the other piece of real estate shall thereupon cease and determine. And my said nephews shall then become the owners in fee and entitled to the possession' thereof immediately, subject, however,” to existing incumbrances. By the fourth clause he bequeathed all “ the residue of” his estate to his wife.
    The mother of the testator died and his widow married again, and thereafter brought an action of partition, in which it was
    
      Held, that the right of the widow to the use of the testator’s estate, with the exception of the Adams & Clark lot, of which she then took the fee,' terminated upon her remarriage, and that at that time the fee of all the remainder of the testator’s realty, including the Rochester lot, passed to the children of his sister, Julia Wilson.
    Adams and Creen, JJ., dissented.
    Appeal by the defendants, John O’R. Wilson and others, from an interlocutory judgment of the Supreme Court in favor' of the-plaintiff, entered in the office of the clerk of the county of Monroe on the 31st day of August, 1896, upon the decision of the. court rem-. dered after a trial at the Monroe Special Term, separately stating the facts found and the conclusions of law.
    This action was begun May 31, 1895..
    June 25, 1868, Michael Riley and Julia Wilson, brother and sister, were seized in fee, subject to the life estate of Bridget Riley, their mother (who died intestate February 18, 1885), of part of lot numbered 16 "on Johnston & Seymour’s map of a section of the city of" Rochester, N. Y., each being entitled to an undivided half thereof.. On that date Michael Riley died at the city of Buffalo, N. Y., leaving him surviving Bridget Riley, his mother and sole heir, and Margaret Riley, his widow, then twenty-two years.of age. He left a last will and testament, which was drily probated in the Surrogate’s Court of the county of Erie and recorded in book 9 of Wills, at page 530,' and in the office of the clerk of the county of Monroe March 2, 1892, in book 506 of Deeds, at page 155. The following is a copy of said .will:
    “I, Michael Riley, of the city of Buffalo, county of Erie and State of New York, being of sound mind and memory and of lawful age, do make, publish and declare this my last will and testament, that is to say :
    “I am the owner of two lots of land having brick buildings thereon, situate on Canal street in the city of Buffalo aforesaid, one of which was conveyed to me by Hiram Adams and wife and Orange W. Clark and wife by deed dated November 27th, 1861, and recorded in Liber 176 of Deeds, at: page 523; the other was conveyed to me by Hector McDonald by deed' dated February 1st, 1865, recorded in Erie county clerk’s office in Liber 239 of Deeds, at page 359. • And I also own a small amount of personal property. Now, considering the uncertainty of this life, and wishing to dispose of my property, in a manner which seems to me right and proper, therefore, I give, devise and bequeath to the Saint Vincent Female Orphan Asylum of Buffalo the sum of five hundred dollars, to be paid in five equal annual installments after my decease, and which I make and declare: shall be a lien and charge upon the premises deeded to me by Hector McDonald, and payable out of the rents and income arising from said premises.
    “Second. I give, devise and bequeath unto my wife, Margaret. Riley, all my real estate and property, to have and to hold to and ' for her use, and the rents, issues and profits thereof, during the term of her natural life, or so long as she shall remain unmarried, and after the death of my said wife to the four sons of my sister Julia Wilson, of the city of Eochester, in fee simple, to be divided between them equally, share and share alike.
    “ Third. In case my said wife shall marry it is my purpose and will, and I hereby devise and bequeath to her the premises and real «state deeded to me by Adams & Clark above mentioned, in fee, her heirs and assigns forever. And all her right and interest in the other piece of real estate shall thereupon cease and determine. And my said nephews shall then become the owners in fee and entitled to the possession thereof immediately, subject, however, to the said incumbrance of fifteen hundred dollars, that is, the said legacy of $500 and a mortgage thereon for one thousand dollars. And if the same or any part thereof shall have been paid by my said wife the same shall be repaid to her by my said nephews.
    
      “Fourth. All the residue of my property of every kind and description I devise and bequeath to my said wife, her heirs and assigns forever.
    
      “Lastl/y. I nominate and appoint my wife, Margaret Eiley, executrix of this my last will and testament, hereby revoking all former wills made by me at any time.
    “ In witness whereof I have hereunto set my hand and seal this 25th day of June, 1868.
    his
    “MICHAEL X. RILEY. [L. s.]
    mark.
    “ The foregoing instrument, written upon three pages, was subscribed by Michael Eiley in our presence, and at the same time he declared the same to be his last will and testament, and each of us signed our names as witnesses at the request of the testator and in his presence. ' “ P. G. PAE'KEE, of Buffalo, N. Y.
    “ELEN DUFEY, of Buffalo, N. Y.”
    The testator died also seized in fee of the realty described in his will.
    At the date of the will and at the death of the testator, four sons of his sister, Julia Wilson, mentioned in the 2d clause of his will, were living, to wit: Austin Wilson, who died intestate December 10, 1870, John O’E. Wilson, James. T. .Wilson and Henry E. Wilson.
    July 22,1869, Margaret-Riley, the testator’s widow, and Timothy Sweeney intermarried.
    In 1880, Henry E. Wilson disappeared ; has not since been heard of, and is presumed to be dead. He left William G. Wilson, a son, his sole heir, and Mary B. Wilson,, widow, who, in 1895, intermarried with Jay O’Neil.
    July 28, 1891, Julia Wilson died intestate, seized in fee of an undivided half of said lot, leaving John O’E. Wilson and James T. Wilson, her sons, and William G. Wilson, a grandson, the son of Henry E. Wilson, her deceased son, her only heirs, and William Wilson, her husband.
    Margaret Sweeney, formerly the widow of Michael Riley, began this action for a partition of said real estate, making the heirs of Julia Wilson parties defendants, she claiming to be the owner in fee of an undivided half of said lot.
    The trial court held that the plaintiff took an undivided half of the lot under the 4th clause of the will of Michael Riley, to which decision the appellants excepted. It was also held that John O’E. Wilson, James T. Wilson and William G. Wilson were each entitled to a one-third interest'of the undivided half of which Julia Wilson died seized,. The lot being incapable of being partitioned, a sale was ordered and a reference to take and report the accounts of the rents and profits received by the'tenants in common, the question of costs being undisposed of.
    From the judgment entered on this decision, John O’E. Wilson and Maggie T., his wife, and James T. Wilson have appealed. William G. Wilson is an infant and has not appealed.
    
      A. J. Rodenbeck, for the appellants.
    
      B. Frank Bake, for the respondent.
   Follett, J.:

The plaintiff concedes that the heirs at law of Julia Wilson are entitled to an undivided half of the lot, and contends that she, under ■ the 4th clause of her husband’s will, is entitled as owner in fee of the undivided half thereof of which her husband died seized. The heirs of Julia Wilson assert that they .are entitled, not only to the undivided half formerly owned by her, but are also entitled as owners in fee of the undivided half of which their uncle, Michael Biley, died seized by virtue of the 2d and 3d clauses of his will.

It will be observed that two pieces of real estate in the city of Buffalo are described in the 1st clause of the will; one was conveyed to the testator by Adams & Clark, and the other was conveyed to him by McDonald, the latter of which is charged with the payment of a legacy of $500 to the St. Vincent Female Orphan Asylum of Buffalo. By the 2d clause, the testator devised and bequeathed all his real estate and property to his wife for life, or so long as she should remain unmarried, and after her death to the four sons of his sister, Julia Wilson, in fee, to be divided equally among them. This clause is unambiguous, except in respect to the duration of the widow’s estate, and by it standing alone she would take the use of the estate so long as she remained unmarried, or for life, and the nephews the fee after her marriage or death.

The 2d clause is modified by the 3d — the 3d providing that, in case the testator’s widow marries, the fee of the real estate ' deeded to him by Adams & Clark shall pass to her, her heirs and assigns forever, and that her right in the other piece of real estate conveyed to him by McDonald shall then cease, and that his four nephews shall then become the owners in fee and entitled to the possession thereof, subject to the legacy of $500 charged thereon and to a mortgage of $1,000. The 2d and 3d clauses of the will, read together, are- unambiguous, so far as they relate to the two parcels of land described in the will, and by those clauses upon the marriage of Margaret Biley she became entitled to the fee of the land conveyed to her husband by Adams & Clark, and the nephews to the fee and possession of the piece conveyed tó him by McDonald.

I am unable to see .any ambiguity- in the 2d and 3d clauses in respect to the disposition of the fee of the real estate owned by the testator other than that specifically referred to in the will. By the 2d clause he devises all of his real estate to his wife, during the term of her natural life, or so long as she shall remain unmarried, and after the death of my said wife to the four sons of my sister Julia Wilson, of the city of Rochester, in fee simple, to be divided between them equally, share and share alike.”

This language is broad enoug'h to embrace and carry all of the testator’s real estate, wherever situated, and by it the fee vested in his nephews on his death, their right of possession being postponed until the termination of the estate of his widow.

The only ambiguity in the 2d clause lies in the words “ during the term of her natural life, or so long as she shall remain unmarried,.and after the death of my said wife.” It seems to me that the words or so long as she shall remain unmarried ” qualify the preceding and succeeding words of the sentence and limit the. right of the widow to the use of the estate to the period of her widowhood, and that upon her remarriage she took the fee of the •land conveyed to the testator by Adams & Clark in lieu of the use' of the testator’s entire estate. I do not think the testator intended to offer his widow, a premium or a pecuniary inducement to remarry by giving to her on that event the fee of part of his realty and continuing her right to use the remainder, except the lot conveyed to him by McDonald, during her life, but that his intention was that, upon her remarriage; his nephews should take the fee with the right to the immediate possession of all his realty except that conveyed to him by Adams & Clark. Such seems to me to be the natural construction of the 2d and 3d clauses.

It is urged that the testator, when he executed his will, did not know, or if he had known had forgotten, that he had an interest in this lot and in the adjoining lot involved in the other action. This seems- an unwarranted presumption. The testator’s father acquired title to this lot by a deed dated April 3, 1837, which was recorded in the office of the clerk of the county of Monroe in Book 41 of Deeds, at page 280. His father had owned this real estate for more than twenty years before his 'death, which occurred February 9, 1859. He left a will by which he devised this lot to his widow for life, and, on her death, to his son Michael Riley and to his daughter . Julia Riley, afterwards Julia Wilson. When the testator executed his will he had no right of possession to ' the lot involved in this action, because his mother, the life tenant, was then living (she died February 18, 1885, sixteen years later), and perhaps for this reason special reference was not made to it in his will. The testator was nominated as the executor of his father’s will. It was not probated until July 22,1881, thirteen years after the death of his son Michael, the executor therein nominated. In whose custody this will was .after the death of the elder Michael and before it was probated, does not appear. ■

I find nothing in the case justifying the presumption that Michael Riley, the son, did not know of his interest in the Rochester lot, but even though he did not know of it, the language of the 2d clause of the will is sufficient to devise it.

The residuary clause under which the plaintiff claims carries nothing. All the testator’s property was disposed of by the preceding clauses, and there is nothing in the residuary clause which limits or cuts down the devises previously made.-

The result is that the plaintiff took no estate in the lot in question, under the will of her husband, which survived her marriage. Her right to dower was not considered in the court below, nor has it been' discussed by counsel on this appeal.

The judgment should be reversed and a new trial ordered, with •costs to the appellants to abide the final award of costs.

All concurred, except Adams and Greek, JJ., dissented.

Adams, J. (dissenting):

I find myself unable to yield my assent to the conclusion reached in tlie prevailing opinion in this case, for the reason that the construction given by the trial court to the will of Michael Riley, Jr., is more in harmony with my views.

In attempting to give effect to this instrument, it may be well, as it certainly will prove helpful, to have recourse to one or two familiar canons of construction, one of which is to first ascertain, if possible, the general scheme or intent which the testator had in mind in disposing of his property (Roe v. Vingut, 117 N. Y. 204), and, having done this, to accomplish such intent if possible, by giving effect to each and every provision of the will. (Chrystie v. Phyfe, 19 N. Y. 344, 348; Taggart v. Murray, 53 id. 233.)

It seems to me quite clear, from a careful reading of the instrument in question, that it was formulated and executed upon the assunqition that the testator’s estate consisted principally, if not entirely, of the-two‘lots situate on Canal street in the city of Buffalo,, and “ a small amount of personal property,” mentioned in the recital which precedes the disposing clauses. That, having thus specifically inventoried his supposed estate, the testator proceeded to make disposition of the same by first bequeathing to the St. Vincent’s Female Orphan Asylum of Buffalo, the sum of $500, and charging ' such legacy upon the Hector McDonald lot, and then devising and bequeathing unto his wife, Margaret Eiley, all his real and personal estate and property, for the term of her natural life, or so long as-she shall remain unmarried. This much accomplished, there follows-the 3d clause, which contains the modifying provision that, in-case his wife shall remarry, she shall take the “Adams & Clark” lot in fee, and that her right and interest “ in the other piece of real estate shall thereupon cease and determine.” It is further provided that the nephews and nieces of the testator shall, in the event first mentioned, take the fee of the McDonald lot, subject to a mortgage of $1,000, and the legacy of $500 to the orphan asylum.

It is true that in the 2d clause the testator gives “ all ” his real estate and property to his. wife, and, strictly speaking, this would ordinarily dispose of the entire estate. But it is quite obvious that the word quoted relates simply to all the estate and property which had been theretofore mentioned, and not to all which the. testator might possibly possess.. For, after providing that his widow should,, in the event of. her marriage^ take the fee of the Adams and Clark lot, and cease to have any interest in “ the other piece of real estate,”' he directs that his nej>hews and nieces shall then become the owners in fee, and entitled to' the possession thereof immediately.” That is, that they shall take the McDonald lot, and not the residue of his estate.

In this view of the’case, and in this manner only, can effect be given to the 4th or residuary clause of the will. For it is to be observed that, as is generally the case, the testator, after disposing of the bulk of his estate, in order to guard against intestacy as to any portion thereof, devises and bequeaths all the residue of his-property, of every kind and description, to his wife, and her heirs- and assigns forever.

It is not to be assumed that this residuary clause is mere surplusage, or that it was incorporated into the will without some well-defined object upon the part of the testator; nor is it to be so construed as to render it meaningless and of no effect, if such a result can be avoided. On the contrary, it is the duty of the court, in construing the same, to look at the entire instrument, as well as at all the circumstances surrounding its execution, in order .that a proper interpretation maybe arrived atl (Kerr v. Dougherty, 79 N. Y. 327.)

Taking the will as a whole, therefore, I am of the opinion that it clearly appears that it was the intention of the testator to dispose of the two Buffalo lots and his personal property only, by the first three clauses of that instrument, and then to devise and bequeath the residue of his estate, if any there should be, by the 4th or residuary' clause. If this view can properly be entertained, resort may then be had to still another rule of construction, which is that in such circumstances the language of the will may be subordinated to the intent of the testator. (Phillips v. Davies, 92 N. Y. 199.)

Green, J., concurred.

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