
    In the Matter of the Appeal to the Surrogate of Cayuga County From an Assessment of the Tax Imposed by Chapter 483 of the Laws of 1885, Against the Legatees of and Under the Last Will and Testament of William Cager, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1887.)
    
    1. Will—Construction of—Rule as to.
    Where an estate is given in one part of a will in clear and decisive terms, such estate cannot be taken away or cut down by any subsequent words that are not as clear and decisive as the words of the clause giving the estate. But, in construing wills, the intention of the testator m.:st be the guide, and in determining such intent the whole instrument must be taken into consideration and effect given to all its provisions so far as is consistent with the rules of law.
    2. Same—Estate taken under the will.
    The testator gave and devised all his estate, real and personal, to his wife, Mary Cager, “to be used and enjoyed and at her disposal during the time of her natural life; ” and, secondly, gave what remained at the' death of his wife to an adopted daughter, Mary Griffin. Held, that were it not for the lands “at her disposal” there could be no question but that a life estate only was intended, but that by the use of the words “at her disposal,” the testator gave to his wife more than a life estate in the prope ty, and that it may be something less than the absolute ownership or unconditional power of making disposition of the same.
    8. Collateral inheritance tax—Effect of the right to diminish or IMPAIR THE ESTATE.
    The right to diminish or impair the corpus of the estate for any purpose whatever renders the assessment under the act premature during the lifetime of one possessing a life estate.
    
      4 Same—Adopted children—Effect of chapter 713, Laws 1887.
    By chapter 713, Laws 1887, chapter 483, Laws 1885, was amended so as to except from the provisions of the act any child or children adopted as such in conformity with the law of this'State, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent. Held, that the assessment of this life estate of the adopted daughter was unauthorized.
    
      Appeal from an order of the surrogate’s court of Cayuga county affirming the assessment of a tax.
    
      Robert L. Drummond, district attorney, for the county,. A. P. Rich, for app’lt.
   Haight, J.

On the 30th day of May, 1886, William Cager died, leaving a last will and testament which was-duly proven and admitted to probate by the surrogate’s court of Cayuga county. The will provided:

“First. After all my. lawful debts are paid and discharged, I give, devise and bequeath all my estate, both real and personal, of what nature and kind soever, to my wife, Mary Cager, to be used and enjoyed and at her disposal during the term of her natural life.

“Secondly. I give and devise one-third of my real estate- and personal property that may remain at the decease of my wife, Mary Cager, to my adopted daughter, Mary Griffin. That is to say, the use of said one-third during her natural life.”

Then follow provisions disposing of the remainder to the children of Mary Griffin.

The surrogate, pursuant to chapter 483 of the. Laws of 1885, appointed an appraiser to determine the tax that should be paid upon the legacies and collateral inheritance, who duly made and filed Ms report, which was confirmed by the surrogate’s court.

The main question raised upon this appeal is as to the estate taken under the will by Mary Cager, the widow, she-claiming a fee.

■ The rule is, that where an estate is given in one part of a, will in clear and decisive terms, such estate cannot be taken away or cut down by any subsequent words that are not-as clear and decisive as the words of the clause giving the-estate. But, in construing wills, the intention of the testator must be our guide, and in determining such intent we must take into consideration the whole instrument and give effect to all of its provisions so far as we can consistently with the rules of law. Roseboom v. Roseboom, 81 N. Y., 356; Wager v. Wager, 96 id., 164.

By referring to the first clause of the will we see that the widow is given the real and personal estate to be used and enjoyed and at her disposal during the term of her natural, life. The words “during the term of her natural life,” qualify that which precedes, and limit the use, enjoyment, and disposal of the property. Were it not for the use of the words “and at her disposal,” there could be no question but-that a life estate only was intended.

The word “ disposal, ” as it is commonly used, varies in meaning. It may mean powder or authority to sell, giveaway or destroy; or it may mean the right to control, manage, use and govern. In determining the sense in which the term was used, we must consider that which precedes and follows it. In doing this, we find not only the limitation of “ during the term of her natural fife,” hut we find that the testator has proceeded to dispose of the remainder after her death. So that in case it was intended to give her the fee, then the subsequent provisions of the will are repugnant and void. In this connection we must bear in. mind the rule already referred to: that is, in determining the intent, we must take into consideration the whole instrument and give effect to all of its provisions so far as we can consistently. If, therefore, the words, “and at her disposal,” mean the right to control, manage, use and govern during the time of her natural life, this provision is made consistent with those which follow and gives effect to the whole instrument.

The words, “ that may remain,” occurring in the second, clause of the will, do not, in my opinion, affect the construction given or enlarge the estate of the widow.

I am, consequently, of the opinion that the construction given to the will by the surrogate is correct.

But there is another question in the case, to which the attention of the surrogate does not appear to have been called. The order assessing the tax was made on the 12th day of August, 1887. Chapter 713 of the Laws of 1887' went into effect June 25, 1887. By that act chapter 483 of the Laws of 1885 was amended so as to except from the provisions of the act “any child or children adopted as such in conformity with the laws of the state of New York, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent.” * * * And “all acts or parts of acts, inconsistent with the provisions of this act, are hereby repealed.” The Law of 1885 taxed the collateral inheritance of adopted children, whilst the Law of 1887 exempts them; in this particular the Law of 1885 is in conflict and is, therefore, repealed.

It follows that the assessment of the fife estate of Mary Griffin, the adopted daughter, was unauthorized.

But my brethren are of the opinion that the testator gave to his wife more than a life estate in the property, both real and personal, under the first clause of the will, and that the same may be something less than the absolute ownership or unconditional power of making disposition of the same; that the devisees and legatees named in the second and third clauses of the will were given so much of the estate of the testator as remained undisposed of and unused by the widow during her lifetime. In disposing of the questian presented by this appeal, it is unnecessary to determine the nature and character of the limitations, if any, which may be imposed on the widow in the use and enjoyment of the corpus of the estate, as the right to impair and diminish the same for any purpose whatever, renders the assessment under the act premature during her lifetime. This view of the case entertained by a majority of the court, leads to a reversal of the order in all respects. All agree upon the construction given to the Law of 1887.  