
    William B. Greene v. John B. Greene et al.
    
    
      (Supreme Court, Special Term, Frie County,
    
    
      Filed February 6, 1889.)
    
    1. Will—Language of, subordinated to intention—Construction of.
    If the plain and definite purposes of a will are endangered by inapt or inaccurate modes of expression, and the testator’s intention is clearly apparent, it is the duty of the court to subordinate the language to the intention, to reject words and limitations, supply them or transpose, to get at the correct meaning.
    2. Same—Should be construed so as to uphold it.
    A will should be construed so as to uphold all of its provisions, unless, in doing so, violence is done to the natural and proper meaning of its provisions.
    3. Same—Should be construed so as to prevent intestacy.
    And such a construction, taking it as a whole, should be given to it as will uphold it and prevent intestacy as to the land devised.
    4. Partition—Tenants in common—When may maintain partition— Code Civ. Pro., § 1537.
    Section 1537 of the Code of Civil Procedure, which provides that “a person claiming to be entitled as a joint tenant, or a tenant in common, by his being an heir of a person who died, holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such devise; but in such an action the plaintiff must allege and establish that the apparent devise is void/' does not, however, afford a plaintiff relief from the common law rule, that, to maintain partition, the plaintiff must be actually, or constructively, in possession of the land sought to be partitioned, at the time of the commencement of his action.
    This action is for the purpose of. partitioning two pieces of land in the city of Buffalo. The plaintiff claims to be the owner of an undivided one-fifth of one of the pieces sought to be partitioned, as heir at law of his father, William H. Greene, deceased, and of an undivided one-fifth of the other piece by virtue of an ante-nuptial agreement executed by his father to trustees, for the use of the plaintiff’s mother during her life and the remainder in fee to the heirs of her body.
    Mr. Greene’s will was executed in 1881. He had been twice married; his wives were sisters. By his first wife he had five children; William B., the plaintiff, John B., Keturah B., Harry B. and Samuel B. There were no children of the second marriage. He left a widow. His children all survived him. The plaintiff had not resided with his father since his early manhood. At the time of the testator’s death, in 1882, his son John B. was married, living hy himself. Keturah, Harry and Samuel were living in the family of the deceased.
    The will contains sixteen clauses. After providing for the payment of his debts, he gives to his widow the homestead, with its furniture, etc.; to a sister, a farm in Ohio for life; the remainder in fee to the plaintiff. By the fifth clause of his will, he gives all the rest and residue of his estate to his three younger sons, the defendants John, Harry and Samuel, as trustees, to carry out the provisions of his will and to execute the trusts thereinafter specified. He appoints the three sons sole executors, and provides that wherever they are mentioned as trustees or executors, the term used shall be construed as embracing either capacity, as the case may be. He directs his trustee, by the sixth clause, to pay to his daugther Keturah, or invest and secure to her satisfaction, as soon as convenient, but within one year after his death, the sum of $25,000, with interest from the date of his death. By the seventh clause, he directs his trustees and executors, as early as practicable, to pay to his wife, or invest and secure to her satisfaction, the sum of $50,000.
    By the 8th clause, he directs them to pay to his wife semiannually, as long as she may live, the interest on the further sum of $25,000. The last named sum, by the ninth clause, is to be, after the death of his wife, paid to his daughter, Keturah. The bequests to the wife are to be in lieu of dower. By the thirteenth clause he directs his trustees to pay to his son, William, the plaintiff, annually, the interest on $5,000, until the expiration of six years from the death of the testator, when they shall pay over to him the principal sum; and he directs his trustees to pay his sister, Hannah, interest on $10,000, during her life, and after her decease, the principal sum to the son, William.
    The fourteenth, fifteenth and sixteenth clauses of his will read as follows:
    “ XIY. I declare it to be my will, and I direct that my said trustees shall take and hold my said property and estate, and the whole thereof (except the said Ohio tracts and my said house and lot on Niagara square), for a period of six years from and after my decease, the estate being chargeable with the payment of the foregoing bequests and legacies, and it being as I now believe, with the moneyed securities on hand, and with prudent management, amply sufficient to pay said legacies in full, together with the taxes, repairs and insurance on my real property, so that, at the expiration of said period, the residue of said real estate, not hereinbefore devised, should remain unincumbered and intact. After the payment of said legacies, the said property; and estate shall be managed for the joint benefit of my said three sons, John B. Greene, Harry B Greene and Samuel B. Greene, who shall annually render to each other a just and full statement of the rents, issues and profits and all transactions relating to said property and estate.
    “During this period of six years, said trustees, my said three sons, shall not, nor shall any or either of them, sell, alienate, mortgage, encumber or dispose of the lands and premises now owned by me and situated on Main, North Division and Washington streets, or any part or parcel thereof, or any share or interest therein; but any or all of my other real estate, not hereinbefore specifically devised,
    I give my said trustees power to sell, convey and ' dispose of, on condition that the proceeds of such sale or sales, or the securities taken thereon, shall not be distributed or divided between them until the expiration of six years, but shall be kept by them, unless it becomes necessary to use the same for the purpose of paying off the legatees aforementioned, in which contingency they are authorized to resort to such proceeds and securities.
    And I do will and enjoin that no partition or division of my estate, so devised and bequeathed to my said three sons, in trust as aforesaid, shall be made or attempted tobe made, until the expiration of said term of. six years; and that, in case either of my said three sons shall attempt to do so, or to defeat or to contravene the terms and intent, and conditions of this trust, he shall forfeit all interest, right, title or property in my estate.
    “ XV. At the expiration of said period of six years, the rest and residue of my said estate, real and personal, remaining after the payment of said legaces and debts, shall belong to my said three sons, John B. Greene, Harry B. Greene, and Samel B. Greene, share and share alike, their heirs and assigns forever.
    “XVI. (Explanatory and qualifying clause). In the plight of the estate, as at present situated, a partition would be detrimental to my said three sons. In the present condition and aspect of affairs the moneyed securities, together with the moneys on hand, would nearly suffice to pay off and discharge all the legacies, and leave the real estate in the hands of my said three sons, unincumbered. Of course, if I live some years longer, this view of the estate may be changed, but probably not in a manner to weaken it. At any time, in case an exigency should require it, I am willing and do authorize my said three sons to mortgage the real estate in order to pay off and discharge said legacies; although I cannot now anticipate any necessity for so doing.”
    
      T. M. Tyng, George Wing and Daniel G. Rollins, for . pl’tff; James G. Beecher and Sherman S. Rogers, for def’ts.
   Lewis, J.

The importance of this case demands that I should state the reasons for my conclusions. My time has been so occupied with other engagements since the submission of the case to me, that I shall be compelled to state them briefly.

In reaching the conclusion that the will of Mr. Greene is valid, I have been obliged to make very free use of the doctrine laid down in the opinion of Judge Finch in Phillips v. Davies (92 N. Y., 208), to wit:

“If the plain and definite purposes of a will are endangered by inapt or inaccurate modes of expression, and we are sure that we know what the testator means, we have the right, and it is óur duty to subordinate the language to the intention. We may reject words and limitations, supply them or transpose them, to get at the correct meaning.”

This will should be construed so as to uphold all of its provisions,' unless, in doing so, violence is done to the natural and proper meaning of its provisions.

It is clear that it was the testator’s wish that the land in controversy should ultimately go to his three sons, John B., Harry B. and Samuel B. This is not controverted by the plaintiff. His contention is that the lands devised to the three sons was a future estate, limited to come in their possession at the expiration of six years, from and after the death of the testator, and that during this period of six years, the title was in them as trustees.

If this is a correct construction of the will, then it is unquestionably void, so far as the land in controversy is concerned, as violative of the laws against perpetuities. The testator was a lawyer of long and large experience, and it would be quite remarkable if he was not familiar with the statute relating to the suspension of the power of alienation. I think I must assume that a lawyer of forty years standing could not have been ignorant of this law, although it is quite surprising, if he had the statute in mind when he was preparing his will, that he should have couched it in the language he did. It would seem, in reading that portion of the will which declares “it to be my will, and I direct that my trustees shall take and hold my said property and estate, and the whole thereof, except said Ohio tracts, for the period of six years from and after my decease,” and again, in the fifteenth clause, “at the expiration of said period of six years the rest and residue of my said estate, real and personal, remaining after the payment of said legacies and debts, shall belong to my said three sons, John B. Greene, Harry B. Greene and Samuel B. G-reene, share and share alike, their heirs and assigns forever,’' that it was his intention to vest the title during that period in his trustees, and suspend the power of alienation for that time.

But, when read in connection with the balance of the will, I think that such was not his intention, but that he intended that the three sons named should enjoy the rents, issues and profits of the property during the six years, subject to the payment of the specific bequests. He had pro-, vided for the payment of legacies amounting to some $115,000. His personal estate, he believed, was sufficient, with prudent management, to pay the legacies, without resorting to the real estate. But, for fear that it might not be sufficient, he required that, if necessary, the rents and profits of the land should be applied to the payment of the specific legacies.

He provided in his will for the care and support of his • widow and daughter, by specific bequests. His three sons were then young, two of them were living with him, and, while they were lawyers, they were dependent for their support, partially, at least, upon the estate of their father. And, unless he intended that the rents and profits of the real estate devised to them should, after the payment of the specific legacies, be used for their support, he made in his will no provision for them for the six years after his decease, and, at the time in their life, when he must have known they would need the use of his property" for their support, he provided in the fourteenth clause that, “after the payment of said legacies, the said property and estate shall be managed for the joint benefit of my said three sons, John, Harry and Samuel, who shall annually render to each other a just and full statement of the rents, issues and profits, and all transactions relating to said property and estate,” indicating, it would seem, that he expected that after the payment of the legacies, they were entitled to the rents and issues of the property for their support.

The real estate consisted of a valuable lot upon Main and Washington streets, covered by valuable buildings, producing large revenue in the way of rents. It was evidently a desire of the testator that this property should be retained by the three sons, without any division thereof. He gave them, as trustees, power to sell, convey and dispose of any of the real estate not specifically devised, on condition that the proceeds of such sale should be retained by them, unless it became necessary to use the same for the purpose of paying off the legacies.

It would not seem that a lawyer of his experience, would have provided so serious a penalty for an attempt to partition the property in question during the six years mentioned in his will, if he understood the title was for that period in trustees. If, however, it was his intention that the title should immediately vest in them, subject to the payment of the specific legacies, it was natural for him to wish to restrain a partition thereof for the period named. Again, no provision is made in the will for the contingency of the death of the three sons, or either of them, during the six years. If he intended that the title should not vest in them until the end of the six years, and he had given the situation any reflection, he would have made provision for the contingency of the death of either or all of the sons, and it is very improbable that he would purposely leave any portion of his property thus undisposed of.

Mr. Greene states in his explanatory and qalifying clause, that he did not think it would become necessary to mortgage the lands in question in order to carry out the provisions of his will, but he provides that, should it become necessary, his three sons should have power to mortgage the real estate. He does not give them, as trustees, power to mortgage it, but as sons. In providing for the sale of other real estate besides that in controversy, he empowered them as trustees to sell. Had he intended that this property should vest in them as trustees during the six years, he would have authorized them as trustees to mortgage it for the purpose of obtaining money to pay the bequests.

By the unfortunate use of words in this will, serious doubts arise as to its true construction, but, I think, taking it as a whole, such a construction can be given to it as will uphold it and prevent intestacy as to the land in question.

I am not satisfied, from the evidence, that the plaintiff was sufficiently aware of his rights and interests in the premises under the will, so that the doctrine of election should be applied to him. There is no question as to the execution of the ante-nuptial agreement. The only question is as to its delivery.

I think the presumption of its delivery, arising from the record thereof, is not disposed of by defendants. Mr. Greene was residing upon the lot secondly described in the complaint after the delivery of the ante-nuptial agreement, with his wife and children, and I do not think his possession can be held to be adverse to the plaintiff. Certainly, from the evidence, not for such a length of time to bar the plaintiff from maintaining an action. The ante-nuptial agreement was executed and delivered in the year 1845. The deceased married his first wife soon thereafter, and resided upon the property described in the ante-nuptial agreement' down to the year 1874. All of his children were born there, and two years after the death of his first wife he married again and resided upon this property with his second wife and his infant children, the youngest of them arriving at maturity in the year 1876.

But, as to the lot described in the ante-nuptial agreement, the plaintiff was not, at the time of the commencement of this action, in a situation to maintain partition. He had not resided upon the property for many years; his father assumed by his will to devise it to his three younger sons, and they, upon the death of the father, entered into possession of it, claiming to own it, denied and repudiated any claim of the plaintiff thereto, and there cannot be any question but at the time of the commencement of this action, it was held by them adversely to the plaintiff. The plaintiff rests his right to maintain this action upon section 1537 of the Code of Civil Procedure, which reads as_ follows:

“A person claiming to be entitled, as a joint tenant or a tenant in common, by his being an heir of a person who died holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such devise. But in such an action, the plaintiff must allege and establish that the apparent devise is void.”

This section does not afford the plaintiff relief from the common law rule that, to maintain partition, the plaintiff must be actually or constructively in possession; his interest in this lot came to him upon the death of his mother by virtue of this ante-nuptial agreement. „ He did not inherit it from his father.

The Code so far changes the common law as to permit' partition in a case where the plaintiff cl aims to be an heir of a person who died, holding and in possession of real property, even if out of possession, notwithstanding an apEarent devise by the person whose heir plaintiff claims to e, provided he can establish the devise to be void. The decedent mentioned in this section is the person who died holding and in possession of real property. The mother of the plaintiff, and not his father, was the person who died holding in possession of the real property. The plaintiff cannot try the question of his title in this form of action, except in a case provided for by this section of the Code.

The rule of the common law was first changed by the act of 1853, which provided that:

“Any heir or heirs claiming lands, tenements or hereditaments, by descent from an ancestor, and who died holding and being in possession of the same (whether such heir or heirs be in possession or not), may prosecute for the partition thereof, notwithstanding any apparent devise by such ancestor, and any possession held under the same devise, provided that such heir or heirs shall allege and establish in the same suit, that such apparent devise is void.”

The provision of the Code which superseded this act is, in effect, the same, although its meaning is not as clear as the act of 1855.

My conclusion is, that this provision of the Code does not reach the plaintiff’s case; not being actually or constructively in possession of the land at the time of the commencement of this action, he cannot maintain partition.

The plaintiff’s complaint must be dismissed, but, in view of the uncertainty and ambiguity of the will, it should be dismissed without costs.  