
    Elias W. Thomas et al., by Guardian, App’lts, v. Jane E. Snyder et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    Will—Construction of—Power to dispose of land by life tenant.
    Testator’s will contained the following language: “First. I give and bequeath to my wife, Electa T. Thomas, the use of the farm on which I now reside, together with one now occupied by William Fairchild, and all the personal property on the said farms, and the income of my bank stock, during her natural life, and the right to dispose of the same by will, except the bank stock. * * * Held, it was competent for the said widow to dispose of the property by will, and having done so. the property passed under the will to the defendants, who were her devisees. Camp-Mi v. Beaumont, 91 N. Y., 464, distinguished.
    
      Appeal from a judgment entered in Oswego county upon a decision made at special term, dismissing the plaintiffs’ complaint in an action of partition.
    March 5, 1875, Elias Thomas made and published his last will and testament, and died in the town of Yolney, Oswego county, May 10, 1880. Plaintiffs are children of a deceased son of the testatator. The son died before the testator. Defendants are testator’s daughters.
    July 3, 1884, testator’s widow, Electa T. Thomas, died.
    Testator’s will contains the following language:
    
      “First, I give and bequeath to my wife, Electa T. Thomas, the use of the farm on which I now reside, together with one now occupied by William Fairchild, and all the personal property on the said farms, and the income of my bank stock, during her natural life, and the right to dispose of the same by will, except the bank stock, and if the income from the above mentioned property shall be insufficient for her maintenance, the deficiency shall be made up from the income of the farm now occupied by James Hodge, and known as the Keeler farm.”
    Before her death the widow made her will, wherein she devised the land in question to her daughters, the defendants.
    This is an action of partition. Plaintiffs claim title to one-third of the lands, and defendants claim title to the whole thereof. The trial judge.has decided that plaintiffs have no title in the lands, and dismissed their complaint, with costs, upon the merits.
    
      Avery & Merry, for app’lts; Rhodes, Coon & Higgins, for resp’ts.
   Hardin, P. J.

From the general tenor and scope of the testator’s will, it is inferable that he did not intend to die intestate as to any portion of his estate.

After enumerations of it in detail as to real estate, and partially so as to the personal estate, he adds a clause lastly to the effect that all the rest, residue and remainder of my personal estate* goods and chattels, of what nature or kind soever, to my said wife Electa T. Thomas.”

A construction which does not leave the testator intestate as to any portion of his estate is preferable and more reasonable of the will in question than a construction which would leave him dying intestate as to two of the several farms of which he was the owner at the time of making and publishing his will, as well as at the time of his death.

The law prefers a construction of a will which will prevent partial intestacy to one which will permit it.” Vernon v. Vernon, 53 N. Y., 361.

While it was within the power of the testator, owning thirteen farms, to so dispose of eleven as to satisfy his intention, and to leave the other two undisposed of, except as to the use thereof during the life of his widow, it does not seem reasonable to impute such an intention to a testator upon doubtful and equivocal language. _

_ The testator limited the gift and devise to his wife “during her natural life.”

The use and devise is clearly unlike that considered in Campbell v. Beaumont, 91 N. Y., 464, which was absolute, and the widow took the whole estate with power, of disposition.

Following the limitation to and “during the widow’s life,” which confessedly applies to the real and personal property given to her, and the words “and the right to dispose of the same by will, except the bank stock,” apparently the intent in the use of the latter words was to make them co-exclusive with the prior words used to give her the use of the property of both classes “during her natural life.”

Besides, the exception of the bank stock and of the before-named personal property, it is suggestive of an intent to include, in “the right to dispose,” the two classes of property entirely save that portion thereof known as the bank stock.

The original will, handed up upon the argument,- gives the language without any use of punctuation or capitals, to indicate an intent to separate the personal from the real in the-application of words “and the right to dispose of the same by will.” Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb., 110.

It was competent for the widow to dispose of the property by will, and, having done so, the property passed under her will to the defendants. Cutting v. Cutting, 86 N. Y., 540; Hutton v. Benkard, 92 N. Y., 295.

It is found that the widow executed a will which, with a codicil, was probated, and that it gave the property in question to the defendants.

The general language of the will was adequate as an execution of the power conferred upon her to dispose of the property in question by will. Mott v. Ackerman, 92 N. Y., 539; Hutton v. Benkard, supra.

It follows that the plaintiff had no title, interest or estate in the lands in question, and that their attempt to partition the same was properly defeated at the trial.

Judgment affirmed with costs.

Boardman, J., and Follett, J., concur.  