
    James W. Kelly, Ex’r, Pl’ff, v. Ann Casey et al., Ex’rs, Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Winn—Construction—Legacy.
    One C. died, leaving a will, by which he directed an annual income of $200 to be paid to his sister during the life of his wife; gave the residue to his wife, and directed that on her death the estate should be divided in three shares, one of which was bequeathed to the sister. The sister died before the wife. Held, that the executors of the sister were not entitled to said annuity, but that the same went to the wife under the residuary clause.
    (Barrett, J., dissents.)
    Case agreed upon and submitted under § 1279 of the Code of 'Civil Procedure.
    
      Horace K. Doherty, for pl’ff; John Weber, for def’ts.
   Daniels, J.

The will which it is the object of this proceeding to construe was made and executed by Luke Casey, who died ■on the 21st of May, 1885. By this will he directed to be paid to his sister, Catherine Casey, an annual income of $200 during the life of his wife, Ann Casey. And he then gave and bequeathed to his wife the residue of the income of his estate, both real and personal. At the time when the will was executed Catherine ■Casey was of the age of sixty years, and Ann Casey was of the age of fifty-four years. Catherine Casey died on the 5th of October, 1887. And since her decease the legacy directed to be paid to Catherine Casey has been claimed by her executors for the benefit of her legatees. And the point to be determined for "the disposition of the case is, whether these executors, or the widow of Luke Casey, became entitled to the legacy after the decease of Catherine Casey.

If the second and third paragraphs of the will, which are as follows;

Secondly. I give and bequeath to my sister, Catherine Casey, .an annual income of two hundred dollars, during the life of my wife, Ann Casey

“ Thirdly. I give and bequeath to my said wife all the remainder of the income of my estate, real and personal,” stood entirely alone, then the legacy of two hundred dollars directed by the testator to be paid to his sister Catharine, would continue .and be payable to her executors during the life-time of his widow, Ann Casey. The cases of Savery v. Dyer, Ambler, 139, and of Morgan v. Williams, 66 How., 139, are authorites directly sup.porting this conclusion. But this case is attended by the additional circumstance that by the fourth paragraph of the will, the testator directed his estate to be divided into three shares orí the ■death of his widow, one of which he bequeathed to his sister Catherine. And that evinces his belief and expectation to have been that this sister would survive the decease of his widow. And from that circumstance it may well be inferred, that his intention was that the legacy, in this manner provided for the sister, should continue only during her life time. These paragraphs of the will, taken together, indicate his purpose to have been to provide this-legacy of two hundred dollars yearly for his sister Catharine and upon the decease of his widow that she should become the devisee and legatee of one-third of his estate absolutely. In this respect, this case differs from those which have been already mentioned. For in the case of Savery v. Dyer there' was no gift whatever to-the legatee out of the residue of the estate. And that was a circumstance that attracted some attention in the disposition and decision of that case. While here, from these paragraphs of the will taken together, the intention of the testator appears to have? been to give to his sister this legacy during the life of the widow,, upon the plain supposition that the sister would be the survivor of the two. And that upon the decease of the widow she would then be in no farther need of a legacy, but would become the-owner of one-third of the real and personal property left by the testator. The intention in all cases of this description is the controlling fact to be considered. Phillips V. Davies, 92 N. Y., 199.

And the intention of the testator to the effect already stated seems to have been quite plainly disclosed in this manner. It. was not that the legacy should continue at all events during the life of his wife, but upon the supposition that the legatee would survive her, that she should receive the legacy during the life of the widow, and then absolutely take this share in the testator’s; estate upon her decease. And that appears to. exclude the intention that the sister should, at all events, become entitled to this legacy during t.he life-time of the widow in case the sister should be previously deceased. Judgment should, accordingly, be directed in favor of the defendants, on the points presented by this case-for the determination of the court, directing payment of the income of the estate under the second paragraph of the will to the-testator’s widow during her life.

Van Brunt, P. J., concurs in result.

Barrett, J.

(dissenting)—I dissent. There is no material distinction between the facts of this case and those passed upon in Savery v. Dyer and Morgan v. Williams. It may be that the testator here expected his sister to outlive his wife, although that is uncertain, as the sis.ter was six years older than the wife. But even if he had that expectation, why should an intention be inferred to continue the annual income given to his sister only during her life time ? He has expressly said that it should continue-during the life-time of his wife. Our decision frustrates this-explicit direction.

As Lord Hardwicke intimated in Savery v. Dyer, there is here-no question of intent. We are dealing with the legal import of plain words. The bequest over to this sister upon the death of his wife, instead of limiting the legacy in question to the life of the sister, plainly leaves such legacy to run on until stopped by the vesting of the estate in' enjoyment.

Thus the whole income is effectually disposed of until the death of the wife and the whole estate is then disposed of. Again, what is the widow to have during her own life ? The residue of the income after the payment of the annual $200 to the sister. There is not a hint anywhere in the will that upon the death of the sister, this $200 per annum is to go to the widow. Nor is there an intimation that, under any circumstances, the widow is to have more than the residue of the income after paying the $200 per annum. The defendants claim that upon the death of the sister the $200 per annum fell into this residue by operation of law for the reason that Catherine Casey was personally the sole object of the testator’s bounty and that consequently the legacy was to her and “ not to her estate.” It might as well be argued that the estate over fell into the remainder for the same reason. But that is not pretended. The annual sum in question vested in Catherine Casey and her legal representatives quite as effectually as the estate over vested in her heirs and for the same reason. There is no distinction in legal principle between this income and the estate over arising from the fact that Catherine was the object of the-testator’s bounty. Neither the annual income nor the estate over was limited upon the life of that object and consequently each took effect according to the ordinary rules of succession and devolution. There is no gap between the cessation of the vested income and the enjoyment of the vested estate.

They run into each other. Thus Catherine Casey or her representatives take the one until the death of the widow and then she or her heirs take the other. This is the scheme of the will and it accords with its plain language and also with such implications of intent as may possibly be gathered from its dear-directions.

I think the judgment should be in favor of the plaintiffs for all the income which has accrued since Catherine Casey's death, with interest and costs.

Judgment for defendants. ,  