
    Cornelius Vanderzee et al., Resp’ts, v. William E. Haswell et al., App’lts.
    
      (Court of Appeals,
    
      Filed October 5, 1886.)
    
    1, Will—Devise of seal estate.
    Where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death, without issue, the words refer to a death, without issue, in the lifetime of the testator, and the primary devisee surviving the testator, takes an absolute estate in fee simple.
    3. Same—Where the rule applies.
    But this rule applies only when the context of the will is silent, and affords no indication of an intention other than that disclosed by words of absolute gift, followed by a gift over iu case of death, or of death without issue, or other specified event; slight circumstances in the wdl will vary their construction and give effect to the language according to its natural import.
    3. Same— Construction — Conditional limitation— “Death without issue ”—To what it refers.
    Where real estate was devised to a son, and if he died without issue, then to testator’s grand-children, subject to the proviso that certain legacies should be paid by the son (the primary devisee;, and by a subsequent clause in the will it was provided that, if the primary devisee should die before the provisions of the will became an act, then the devisees over (the grand-cliildren) should perform all the conditions as to the payment of legacies required of the primary devisee, lle.d, that the words “ death without issue ” referred to the death of the primary devisee at any time, and not merely to his death in the lifetime of the testator, and that the primary devisee took a fee subject to a conditional limitation.
    Appeal from a judgment of the supreme court general term, third department, affirming a judgment of the Albany-special term in favor of plaintiffs in an action for partition. The casó involves the construction of the will of Harmon Vanderzee, the terms of which are set forth in the opinion.
    
      N. C. Moak, for app’lts; Edwin Countryman, for resp’ts.
   Andrews, J.

The sole question presented in this case is whether Cornelius Vanderzee took under the will of his father, Harmon Vanderzee, an estate in fee simple in the homestead farm, or a fee subject to a conditional limitation in favor of the four grandchildren of the testator named in the will, in the event of the death of Cornelius without issue. The testator died in 1840. His son Cornelius entered under the devise, and continued in possession of the farm until his death, in 1876. The plaintiff, Cornelius Vanderzee, is one of the four grandchildren named in the will, and his right to maintain this action depends upon the nature and quality of the title which the testator’s son, Cornelius, took uhder the will of his father.

This will is brief, and is a will of real estate exclusively. The testator, in the first clause, directs that his debts and funeral charges shall be first paid out of his estate. The second clause is as follows : “All my real estate, as now in my actual possession, being my homestead farm, situate in the county of Albany, I devise to my son, Cornelius, subject to the proviso hereinafter contained.” The third clause directs that Ms wife, if she survive him, shall have an ample support from and out of the estate devised to Corneilus, during his life. The fourth, fifth, sixth, seventh and eighth clauses bequeath severally to his three daughters, his son Tunis, and his grandson Harmon Slingerland, money legacies amounting in the aggregate to $1,700. The mnth and tenth clauses are as follows : “Ninth. The legacies above mentioned are to be paid to the legatees by my son Cornelius, in consideration of my devising unto him the aforementioned real estate, to be paid to them, respectively, within two years after my death. Tenth. In conclusion, my will is that if my son Cornelius dies without issue, that then the estate herein devised to him shall go to my grandchildren hereinafter named : Harmon T. Vanderzee, Cornelius T. Vanderzee, sons of my son Tunis; Harmon Slmgerland, son of my daughter Elizabeth, deceased; and Harmon Houghtaling, son of my daughter Eve—share and share alike; and in case my son Cornelius should die before the provisions of tMs will become an act, the devisees last named shall perform and fulfill all the conditions of my son Cornelius to the legatees named in this my will.”

The whole question is whether the words, “.if my son Cornelius dies without issue,” in the tenth clause, refer to the event of his death before that of the testator, or to a death at any time, whether before or after the testator’s death. If the former is the true meaning, the gift over to the grandchildren was substitutionary merely, depending on the contingency of the death of the primary devisee in the lifetime of the testator, and designed to prevent a lapse; and, upon that construction, Cornelius having survived the testator, the contingency upon which the grandchildren were to take was gone, and Cornelius took an absolute fee. If, on the other hand, the words refer to a death, at any time, under the circumstances mentioned, then, on the death of the testator, the grandchildren took a contingent interest under the will, by way of executory devise, which, on the < death of Cornelius without issue, was converted into a fee in them, thereby displacing and subverting the conditional fee before that time vested in Cornelius. It has been claimed, indeed, that the devise to Cornelius was of a life-estate only. But this is, we think, an inadmisable construction of the devise. The devise was in terms of all the testator’s real estate in possession, and the language is sufficient, both at common law and under the statute, without words of inheritance, to embrace the fee (1 Rev. Stat. 748, § 1), and the gift over, in the event only of the death of Cornelius without issue, furnished the strongest ground of implication that the testator intended to vest in Cornelius a title transmissible by descent to his issue.

It is said by Mr. Jarman (2 Jarm. Wills, 752) to be an established rule that, where a bequest is. simply to one person, and, in case of his death, to another, the primary devisee surviving the testator takes absolutely. This rule applies both to real and personal estate, and, so far as I know, the authorities in this country uniformly sustain the construction that, in a devise or bequest smvplieiter to one person, and, in case of his death, to another, the words refer to a death in the life-time of the testator. Moore v. Lyons, 25 Wend., 119; Kelly v. Kelly, 61 N. Y., 47; Briggs v. Shaw, 9 Allen, 516; Whitney v. Whitney, 45 N. H., 311. It is said, in support of this construction, that as death, the most certain of all things, is not a contingent event, but the time only, the words of contingency in a devise of the character mentioned can be satisfied only by referring them to a death before a particular period; and, as no other period is mentioned, it is necessarily presumed that the time referred to is the testator’s own death. See Edwards v. Edwards, 15 Beav. 357.

We think this construction, although supported by somewhat refined and technical reasoning, stand more strongly, in most cases, at least, upon the probable intention of the testator. It prevents the disinheritance of a testator’s posterity, which would often happen if a death of the primary legatee at any time was held to be within the meaning of the devise. It may be safely assumed that, where a will is dictated under the influence of family relations, it would seldom happen that a testator would intentionally cut off the issue of a son or daughter from taking the share of the parent in his estate, for the benefit of collateral objects.

There are cases of another class than the one mentioned, in which an alternative hmitation, depending upon the death of a primary legatee or devisee, is also held to refer to a death in .the life-time of the testator, although the cases are not within the reason upon which the construction in the class of. cases first referred to is suported. One of the cases of the second class is where a devise is made to A., and, in case of his death without issue or without children, or without leaving a lawful heir, then to B. It is manifest that the event on which the gift over is to take effect is distinctly pointed out, and is uncertain and contingent, viz., death without issue, etc.; and it is not necessary, in order to give effect to the words of contingency, to refer the death to one happening before the death of the testator. So, also, such a construction is not necessary to prevent the disinheritance of issue, for it is only in the event that there is no issue that the gift over is to operate. It is said by Mr. Jarman (2 Jarm. Wills, 783), that the general rule is that, where the context is silent, the words referring to the death of the prior legatee, in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator. It will be observed that the rule as stated by the learned author relates to personal property, and is deduced from the later English cases upon the construction of bequests of personalty coupled with a contingency, which seem to have modified the earlier decisions. But where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in the case of his death without issue, it has, I think, been uniformly held in England, and it is the rule supported by the preponderance of judicial authority in this country, that the words refer to a death, without issue, in the life-time of the testator, and that the primary devisee surviving the testator takes an absolute estate in fee-simple. Clayton v. Lowe, 5 Barn. & Ald., 636; Gee v. Mayor of Manchester, 17 Adol. & E. (N. S.), 737; Woodburne v. Woodburne, 23 Law J. Ch., 336; Doe v. Sparrow, 13 East, 359; Quackenbos v. Kingsland, 10 N. Y., 128; Livingston v. Greene, 52 id., 118; Embury v. Sheldon, 68 id., 227; Waugh’s Appeal, 78 Pa. St., 436; Mickley’s Appeal, 92 id., 514. But see Britton v. Thornton, 112 U. S., 526 ; S. C., 5 Sup., 291.

The case of Quackenbos v. Kingsland, supra, was that of a devise by the testator of the residue of the real and personal estate to “my son Daniel Kingsland, and to his heirs; but, in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children, share and share alike;” and it was held, in exact conformity with the decisions to which we have referred, that the words referred to the death of the primary devisee in the life-time of the testator. This rule of construction in this class of cases is founded in part upon the disinclination of the courts to cut down a fee once given, except upon clear words, but rests more upon authority and precedent than reason; for it is by no means certain that it was not the intention of the testator to control and provide for the ulterior devolution of the title, after it had been enjoyed during fife by the primary devisee, in case he then died without issue, and such a construction would, it would seem, give effect more cómpletely to the language used. But the rule established by the courts applies only where the context of the will is silent, and affords no indication of intention other than that disclosed by words of absolute gift, followed by a gift over in case of death, or of death without issue, or other specified event. Indeed, the tendency is to lay hold of slight circumstances in the will to vary the construction, and to give effect to the language according to its natural import. Buel v. Southwick, 70 N. Y., 581; Nellis v. Nellis, 99 id., 505; Hennessy v. Patterson, 85 id., 92. In these, and other cases which might be cited, the court found in the context indications of intention which took them out of the operation of the rule to which we have referred.

We are of opinion that there are indications in the will now before us that the testator intended that the gift over to the grandchildren should take effect upon the death of his son Cornelius, without issue, at any time either before or after his own death; and that the rule of construction which applies to the words “ death without issue,” when standing alone, does not apply to the will in question.

The gift to Cornelius in the second clause of the will is made “ subject to the proviso hereafter contained.” Read-, ing this clause by itself, we should naturally expect to find in a subsequent part of the will some condition modifying, in some contingency, the estate given to Cornelius; and while the condition might, consistently with the language of the second clause, be either precedent or subsequent, the more natural meaning suggested by the words, “subject to the proviso hereinafter mentioned,” would be that the testator intended to subject the estate in the hands or possession of Cornelius, when he should take it under the will, to some condition. Looking, then, at the tenth clause, we find a condition or proviso, which is that, on the death of Cornelius without issue, the estate should go over to the grandchildren. This provision in the tenth clause, standing alone, would, according to the general rule of construction, be construed as referring to the death of Cornelius, without issue, during the testator’s life; but, construed in connection with the natural meaning of the second clause, there is color for a conclusion that is referred to a death, either before or after the testator’s. But more satisfactory evidence that the testator referred to a death at any time is found in the last paragraph of the tenth clause, .which declares, “ in case my son Cornelius should die before the provisions of this will become an act, the devisees last named [the grandchildren] shall perform and fulfill all the conditions required of my son Cornelius, to . the legatees named in this my will.” It seems obvious that the duty imposed upon the grandchildren by this clause was a duty to be discharged by reason of an omission or default of Cornelius to satisfy the legacies. If the only object of this clause was simply to impose upon the grandchildren the duty of paying the legacies in case the alternative gift took effect by the death of Cornelius without issue, in the lifetime of the testator, so that thereby they became primary devisees, the testator would naturally have expressed his intention in simple and clear language, as by declaring, in connection with the gift over, that the grandchildren should pay the legacies, or that they should take the land subject to their payment. The phrase, “in case my son Cornelius should die before the provisions of this will become an act,” is obscure. But it is to be observed that Cornelius had, by the terms of the ninth clause, two years in which to pay the legacies. The testator must be assumed to have had in mind two contingencies : (1) That Cornelius might die before him, without issue ; or (2) after him, but within the two years, and before he had paid the legacies.

The last paragraph of the tenth clause was inserted, we think, to provide for both contingencies; and the burden of paying the legacies was imposed upon the ulterior devisees, in case of the death of Cornelius either before the testator or after his death, and within the two years, in case the direction for their payment should then be unexecuted. If this is the fair construction of the clause, then it is clear that the words “death without issue ” referred to a death at any time; because it is inconceivable that the testator could have intended that the grandchildren should pay the legacies, except in the event of their taking under the de vise. The clause is not that, in case Cornelius dies before the will takes effect, then the grandchildren shall pay the legacies; but, “in case he dies before the provisions of this will become an act,” i. e., before he shall have paid the legacies. The legacies were an equitable charge on the land. Harris v. Fly, 7 Paige, 422. The fact that they were also personally charged on Cornelius does not, we think, require us to hold that he took a fee-simple. The circumstance that a devisee is personally charged with the payment of legacies is a fact resorted to in doubtful cases, in aid of the construction of a devise, but- is never decisive where a different intention is disclosed.

We think the judgment should be affirmed.

All concur.  