
    (84 Hun, 124.)
    KENDALL et al. v. CASE.
    (Supreme Court, General Term, Third Department.
    February 12, 1895.)
    Construction of Will—Life Estate—Power of Sale.
    Testator gave to his wife the income of all his property for her life, and provided that, “if any of said real or personal property is left [at the wife’s death], I order my executor to divide said remainder * =•■ * as follows,” Held, that the wife took a life estate, with the right to dispose of the property for her support during her lifetime. In re Blauvelt’s Estate (Suit.) 20 N. Y. Supp. 119, distinguished.
    Appeal from special term, Schoharie county.
    Action by Mary Kendall and another against Margaret Case for partition. From an interlocutory judgment sustaining a demurrer to the answer, defendant appeals. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    L. G-. Van Tuyl (William C. Lament, of counsel), for appellant C. W. Hinman, for respondents.
   PUTNAM, J.

This is an appeal by defendant, Margaret Case, from an interlocutory judgment sustaining plaintiffs’ demurrer to the answer. The action was brought for the partition of a lot of land in the county of Schoharie, owned by one Vincent R. Wilber at the time of his death. Plaintiffs claimed to be each seised of an undivided one-fourth part thereof, under the will of said deceased. The appellant averred that she owned the whole lot under a deed from Polly Wilber, widow of deceased; that under the will of said Vincent R. Wilber said Polly became seised of a life estate in said real estate, with a power to dispose of the same during her life for her support and maintenance, and that under said power she duly conveyed the premises to the defendant, Margaret Case. To the answer, which alleged the facts above suggested, the plaintiffs interposed a demurrer, which was sustained, and the judgment from which this appeal is taken was entered.

The clauses in the will of Vincent R. Wilber which defendant claims conferred upon his widow, Polly, power to dispose of the real estate in question, are as follows:

“Second. I give, devise, and bequeath to my beloved wife, Polly, the control, use, and incomes of all my property, both real and personal, of every nature, for her own benefit, so long as she lives; and after the death of my said wife, Polly, and after the payment of funeral charges ánd erection of suitable tombstones, if any of said real or personal property is left, I order my executor to divide said remainder, share and share alike, and to pay my said children or heirs as follows: Betsey, my daughter, the wife of Ransom Thome; Mary, my daughter, the wife of John Kendall; Naomi, the wife of my son, Clark Wilber; and Margaret Case, the wife of Joel Case, she being the daughter of my wife, Polly; if either of said named should die without issue, then it is to be divided between the others living or having issue. Third. I hereby nominate and appoint Solomon D. Mackey, of said town, executor of this, my last will and testament. I do hereby authorize my executor to sell, convey, and deed my real estate, if any is left, if he deems best to do so, and the deed he shall give shall be sufficient deed of all interest owned by me in my real estate.”
In construing the above-quoted clauses of the will in question, it is our duty to ascertain the intent of the testator, as it may be ascertained from the provisions of the instrument. Did he intend to bequeath to her the mere interest and income to be derived from his real and personal property during her life? or did he, in addition to the income, intend to give to her the power of using such part of said property as might be required for her support? With some doubt and hesitation we have reached a different conclusion, as to the construction to be given to the above-quoted provisions of said will, than that arrived at by the learned trial court. In each of the cases cited by him (Weed v. Aldrich, 5 Thomp. & C. 105, and In re Blauvelt’s Estate, 20 N. Y. Supp. [Surr.] 119) there was a bequest for life, and, after the death of the life devisee, an absolute disposal of the remainder. The clause disposing of the remainder, contained in the will under consideration,-—“if any of said real or personal property is left,”—was not in either of the wills considered in those cases, and the distinction between such wills and the one set out in the answer herein is adverted to by the surrogate in the case last cited. He says:

“The cases cited to sustain the construction that the widow might exhaust or appropriate the body of the estate in her use of the same are instances where words were used by the testator indicating that he contemplated the exhaustion of or appropriation by the life tenant of the body of the estate; such as in Thomas v. Wolford, 49 Hun, 145, 1 N. Y. Supp. 610, where we find used the words, ‘should there be any left to be divided among the children or their heirs’; in Flanagan v. Flanagan, 8 Abb. N. O. 413, ‘the portion left of said remainder’; Simpson v. French, 6 Dem. Sur. 108, ‘to do with said property as he shall deem best.’ ”

In Thomas v. Wolford, 49 Hun, 145, 1 N. Y. Supp. 610, the provision in the will construed was 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.”

Held that, under the provisions of the will, the wife had 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 this beneficial enjoyment; and that, upon her death, such estate as had not been consumed by her was devised to the children. This case was cited, and not disapproved, in Leggett v. Firth, 132 N. Y. 7-12, 29 N. E. 950. In Wells v. Seeley, 47 Hun, 109, the will provided as follows:

“All the rest and residue of my estate, both real and personal, I give and bequeath to my beloved wife, Emily R. Beardsley, to be held and used by her as she shall see fit and proper during the full term of her life; and at her death, if any part of my said estate shall remain unexpended, then, and in that case, I give and bequeath such remaining portion to my said son, Willis S., and my said daughter, Helen P., in equal parts, each to each.”

It was held (page 116) that the widow had a life estate in the property, with power to use such portion thereof as she should deem proper for her support during life. In Flanagan v. Flanagan, 8 Abb. N. C. 413, it was decided that a gift to the widow of the use of all the remainder during her life, and the portion left of said remainder to be distributed to the poor of St. Peter’s Church, gave to the devisee for life a right to dispose of the fund during her lifetime. See, also, In re Williamson (Surr.) 9 N. Y. Supp. 476; Smith v. Van Ostrand, 64 N. Y. 278; Campbell v. Beaumont, 91 N. Y. 464; Leggett v. Firth, 132 N. Y. 7, 29 N. E. 950; Colt v. Heard, 10 Hun, 189.

Under the above authorities, I think it must be held that Polly Wilber, by the provisions of her husband’s will, took a life estate in the real and personal property left to her, with the right to dispose of said property for her support during her lifetime; and hence that the defendant, under her conveyance, derived a valid title to the real estate in question. Unless the testator intended to devise to his wife such an estate and power, why should he direct his executor to divide the remainder after her death, “if any of said real or personal property is left.” By these words he assumes that none of the real or personal property may be left to divide; that the property may be used up by the widow. These words indicate his intent that his widow might use and dispose of the body of the estate devised, as well as the income thereof. Likewise, when he authorizes his executor to sell his real estate, why does he add, “if any is left”? These words show that it was in the mind of the testator that the widow might dispose of the real estate during her lifetime. We conclude that the judgment should be reversed, and the demurrer overruled, with costs in this court and the court below.

HERRICK, J., concurs. MAY HAM, P. J., not acting.  