
    Ellen Banzer, Appellant, v. Adam Banzer et al., Respondents.
    (New York Common Pleas-General Term,
    February, 1895.)
    Testator, by bis will, gave to bis wife all bis real and personal estate in. his possession, and all bis personal estate of whatever nature, and gave' her the “ undisputed right to do and .dispose of, according to her own. judgment, that after her dead, my beloved children or their executor, administrator, shall divite the same chair and chair alike.” Plaintiff’s, husband, who was a son of testator, died before the widow, leaving one son, who also died^ before the widow. Held, that the intention of testator was clearly to effect an absolute devise to his wife, which was not-cut down by the subsequent words of limitation, and that plaintiff’s-deceased husband and son took no interest under the will.
    
      Banzer v. Banzer, 10 Misc. Rep. 24, affirmed.
    Appeal from a judgment rendered by the court, without a-jury, dismissing the complaint upon the merits.
    
      James JKea/rney, for appellant.
    
      JEdwa/rd W. 8. Johnston, for respondents.
   Bischoff, J.

This is an action for partition. The property in question was held originally by Michael Banzer and John Maier as tenants in common, each an undivided moiety. John Maier subsequently conveyed his interest to Susanna' Banzer, the wife of his cotenant. Michael Banzer thereafter died leaving a last will and testament, whereby he disposed of his property as follows :

“ After all my debts are paid and discharged I give and bequeath to my beloved wife, Susanna Banzer, all my real and personal estate now at present and hereafter in my possession. My real estate consisting at present of a part of a house known by the number 220 West 32nd street, 20th ward, so as described in the deed of said house. And my personal estate, and whatever belonging to me at my dead, whatsoever and wheresoever of wat nature, kind and quality soever may be, that she shall have undisputed right to- do and dispose of, according to her own judgment, that after her dead, my beloved children or their executor, administrator, shall divite the same chair and chair alike.”

Susanna Banzer died intestate, leaving her surviving the defendants Adam and John Banzer, Annie Hauf and Elizabeth Howell, her heirs at law.

Plaintiff is the widow of Christopher Banzer, á deceased son of Michael and Susanna Banzer. Said Christopher died before Susanna Banzer, leaving him surviving plaintiff and an infant son, Christopher Banzer, Jr., which son also died before Susanna Banzer, and it is as heir at law of this' infant that plaintiff claims an interest in the real property in question.

The construction of the will above set forth, contended for by plaintiff, is that a .life estate in Susanna Banzer was created of the moiety of the realty specified, which was owned by the testator, with remainder over to his heirs, and that, therefore, the plaintiff should succeed to the interest of Christopher Banzer, Jr., as his heir at law.

For the defendants it is claimed that the conveyance from Maier to Susanna Banzer had the effect of creating a tenancy by entireties in Michael Banzer and his wife, and that, therefore, any limitations in the will of Michael would not affect the absolute ownership of Susanna after his death. It is also contended that the limiting provisions in the will applied only to the testator’s personalty.

Whatever field for discussion may be presented by these questions is not of importance, for, assuming them to be determinable as contended for by plaintiff, we are content to uphold the determination of the learned trial judge upon the. ground that the plaintiff’s deceased son possessed no interest in the property at the time of his death by virtue of the provisions of the will.

At the trial it was held that the complaint should be dismissed, the limitation over to the heirs of the testator being adjudged void as depending upon the nonexecution of an absolute disposing power vested by the will creating the limitation (Van Horne v. Campbell, 100 N. Y. 294), and the plaintiff’s claim necessarily failing with the limitation.

We agree with the views expressed as to the construction to he placed upon the will by the learned . judge below, that the wife was given at least an'absolute disposing power over the property, but, even so, the limitation, as clearly to be viewed as attempting to create an expectant estate, is not necessarily to be adjudged void for that reason, assuming the first provision to intend a power of disposal merely and not an actual devise in fee.

The case of Van Horne v. Campbell, supra, was an adjudication upon a will which took effect prior to the Revised Statutes, and the decision proceeded upon the principles of the common law 100 N. Y. 310.

It has since been held that by the provisions of the Revised Statutes (3 R. S. [7th ed.]. p. 2178, §§ 32, 33), the effect of which was expressly left undecided in Van Horne v. Campbell, a remainder such as that considered is not void in its creation by reason of the power of disposition vested in the first taker. Greyston v. Clark, 41 Hun, 130.

But this, nevertheless, cannot affect the present question.

In the instrument under consideration there is no trace of a provision that the property held by virtue of the will and remaining undisposed of at the death of the first taker should vest in the heirs of the testator, as there was in the case of Greyston v. Clark, and by the terms of the prior provision with regard to the property in suit it was clearly intended to effect an absolute devise- to the wife, Susanna Banzer. * ■

Whatever force as' authority may be. attributable to the somewhat broad expressions of opinion in the case of Greyston v. Clark, in view of the repeated enunciation by the courts of the rule that an absolute-devise is not to be cut down by subsequent words of limitation (Campbell v. Beaumont, 91 N. Y. 464, 468; Crain v. Wright, 114 id. 309; Griswold v. Warner, 51 Hun, 17; Oothout v. Rogers, 59 id. 100; Roseboom v. Roseboom, 81 N. Y. 356; 15 Hun, 309 ; Buckland v. Galup, 22 N. Y. Wkly. Dig. 23 ; Jackson v. Robins, 16 Johns. 538; Helmer v. Shoemaker, 22 Wend. 137), the adjudication is, nevertheless, inapplicable to the present case, for here we have every element of a limitation repugnant to a devise in fee, with none of the peculiar characteristics which the courts have sometimes found to bring a case without the rule declaring the subsequent limitation void.

The force of the long line of adjudications upon the subject dealing with wills in effect under the Revised Statutes concludes discussion as to the present existence of the rule noted, while there may well be a distraction in the case of a will wherein the intention to create a fee is not clearly expressed, with the result that a life estate with power of disposition alone is created, and the rule in Greyston v. Clarck be of authoritative effect.

The conclusion is that plaintiff’s deceased husband and son took no interest under the will, and that the estate vested in Susanna Banzer and descended to her heirs, of whom the plaintiff is not one.

Judgment affirmed, with costs.

Bookstaver and Giegerich, JJ., concur.

Judgment affirmed, with costs.  