
    HERMANCE v. MEAD.
    
      N. Y. Supreme Court, Special Term, Second District;
    
    
      December, 1886.
    
      Will; fee, or life estate with gift over of unconsumed residue.] A gift of the absolute title cannot be cut down to a gift of the use and so much of the corpus as the legatee may consume during life, with a gift over of what is left at his death, by declaring in a subsequent clause of the will that the gift first expressed to be absolute is upoq the express condition of such gift over by the testator, with authority to his executor to see that the condition is earned out.- •
    
      Trial by the court.
    The action was brought by Sarah Hermanee against Mary F. Mead and others to obtain a judicial construction •of the will of William 0. Fields, deceased.
    The material parts of the will are as follows :
    “ I give, devise and bequeath all the real estate that I may be possessed of at the time of my decease to my kind and affectionate daughter, Mary F. Mead; also all my household furniture of every name and kind ; also the sum of twenty thousand dollars, to be paid to her out of my personal estate in bank stock, bonds and mortgages and other good securities, to her and her heirs forever.”
    After giving several other legacies and specific bequests the will continues:
    “ All the rest, residue and remainder of my estate I devise, give and bequeath to my said daughter, Mary F. Mead, •and her heirs.
    <e All, each and every of the foregoing devises, gifts and bequests as made in this, my last will and testament, to my said daughter, Mary F. Mead, are made upon the express, condition, and my will is, that if my said daughter dies without lawful issue, leaving no child or children, in that •event, I devise, give and bequeath all that may be left of the property and legacy devised, given and bequeathed to her in this, my last will and testament, to my brother, Daniel Fields, and my sisters, Maria Hatfield, Harriet Marks, Elizabeth Goodwin and Sarah Hermanee, to be equally divided between each to share and share alike, to them and their heirs forever. I hereby authorize my •executor or executrix to see that the above conditions are strictly carried out under any and all circumstances.
    “ I order and direct my executor and executrix to pay out of my personal estate the legacy of my said daughter, Mary F. Mead, before any other legacies are paid; her legacy is to take the preference to any and all other legacies above named.”
    The daughter and her husband, Frederick A. Mead, were named as executrix and executor in the will, and as such came into possession of all the property of testator. Before his death, however, the testator conveyed to his-daughter all his real estate.
    The legacy of $20,000 ivas paid to her in bank stock, bonds and mortgages, and other securities, as directed in the will.
    This action was brought by the plaintiff, a sister of the-testator named in the will, against testator’s daughter, joining as defendants the executors and all the other sisters and collateral relatives of the testator named in the will,, asking that the will be construed that the daughter took a life estate only in all the property received by her under the will and that it be adjudged that she hold such property in trust for the benefit of the plaintiff and the other-collateral relatives named in the will.
    The daughter claimed that she took the property absolutely and that under the will the plaintiff and the collateral relatives had no interest, either vested or contingent, in-the-property.
    
      John P. H. Tallman, for the plaintiff.
    
      Walter Farrington, for other collateral relatives.
    
      Alden Chester, for the defendant, Mary E. Mead, and the-executors.
    I. The clause in the will providing “ that if my said daughter dies without lawful issue, leaving no child 01-children,” has reference to the death of the daughter during the lifetime of the testator and imports a contingency and not a limitation. The daughter having survived her father takes an absolute and unconditional estate in the-property bequeathed to her. Quackenbos v. Kingsland, 102 N. Y., 128 ; Embury v. Sheldon, 68 Id., 227, 233; Kelly v. Kelly, 61 Id., 47; aff’g 5 Lans., 443 ; Livingston v. Greene, 52 N. Y, 118, 124 ; Gibson v. Walker, 20 Id., 476 ; Kerr v. Bryan, 32 Hun, 51; Fahrney v. Holsinger, 65 Penn.St., 388, 394; Estate of Biddle, 28 Id., 59, 62 ; Schoonmaker v. Stockton, 37 Id., 461, 464; Clayton v. Lowe, 5 Barn. & Ald., 636 ; Gee v. Mayor of Manchester, 17 Q. B. (Ad. & El.), 737; Crossman v. Field, 119 Mass., 170; Matter of Tallmage, 20 Weekly Dig., 69.
    II. The gift over is void, and the plaintiff has no interest whatever under the will, because :
    
      (a) The subsequent limitation over is repugnant to the original disposition and inconsistent with the absolute estate previously given. 2 Redf. on Wills, 277 ; Jackson v. Delancy, 13 Johns., 535, 552; Jackson v. Bull, 10 Johns., 19 ; Jackson v. Robbins, 16 Johns., 537, 584-90 ; Helmer v. Shoemaker, 22 Wend., 137; Patterson v. Ellis, 11 Wend., 259; McDonald v. Walgrove, 1 Sandf. Ch., 274 ; McLean v. MacDonald, 2 Barb., 534; Floyd v. Fitcher, 38 Barb., 409, 413 ; Matter of Hohman, 37 Hun, 250; Wright v. Miller, 8 N. Y., 9, 25 ; Norris v. Beyea, 13 N. Y., 273, 285; Oxley v. Lane, 35 N. Y, 340, 347; Campbell v. Beaumont, 91 N. Y., 464; Smith v. Van Ostrand, 64 N. Y., 278, 284; Cohen v. Cohen, 4 Redf., 48 ; Pinckney v. Pinckney, 1 Bradf., 272 ; Bull v. Kingston, 1 Meriv., 314; Ross v. Ross, 1 Jac. & W., 154; Annin v. Vandoren, 14 N. J. Eq., 135, 141; Downey v. Borden, 36 N. J. Law, 460; Dutch Church v. Smock, Saxton Ch. (N. J.), 148 ; Mitchell v. Morse, 77 Me., 423 ; abstr. s. c., 32 Alb. L. J., 395; Jones v. Bacon, 68 Me., 34; s. c., 28 Am. Rep., 1; Ide v. Ide, 5 Mass., 500 ; Totten v. Sprague, 15 Weekly Dig., 206.
    
      (b) The bequest over of “ all that may be left of -the property ” is void for uncertainty. See cases above cited and Van Horne v. Campbell, 100 N. Y., 287 ; Gifford v. Choate, 100 Mass., 343 ; Wynne v. Hawkins, 1 Brown Ch. Rep., 179 ; Perry v. Merritt, L. R., 18 Eq., 152 ; Atty. Genl. v. Hall, Fitzgibbons Rep., 314, 321; Pope v. Pope, 10 Sim., 1; 1 Jarm. on Wills, 363, 364; Henderson v. Cross, 29 Beav., 216; Dorland v. Dorland, 2 Barb., 63, 81; 4 Kent's Com., 270; 2 Redf. on Wills, 392 ; Sprange v. Barnard, 2 Brown's Ch. R., 585, 587.
    (c.) Where an estate is given in one part of the 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. Lambe v. Eames, L. R., 10 Eq. Cas., 267 ; Parson v. Best, 1 Supm. Ct. (T. & C.), 211; Roseboom v. Roseboom, 81 N. Y., 356; Foose v. Whitmore, 82 N. Y., 405; Clarke v. Leupp, 88 N. Y, 228; Freeman v. Coit, 96 N. Y., 63; Campbell v. Beaumont, 91 N. Y., 464.
    III. If the gift over be held valid, then the testator designed to give his daughter not the use only, but the absolute power of disposition of the property. By no other reasoning can force be given to the words “ what may be-left of the property,” which necessarily imply the right in the daughter absolutely to dispose of the property during her life. Flanagan v. Flanagan, 8 Abb. N. C., 413; Greyston v. Clark, 41 Hun, 125; Colt v. Heard, 10 Hun, 189 Spencer v. Strait, 38 Hun, 228; Wright v. Miller, 8 N. Y, 9, 24; Campbell v. Beaumont, 91 N. Y., 464; Van Horne v. Campbell, 100 N. Y., 287, 291; Ide v. Ide, 5 Mass., 500, 504; Gifford v. Choate, 100 Mass., 343, 346; Clark v. Middlesworth, 82 Ind., 240, 246; Jones v. Bacon, 68 Me., 34, 37 ; s. c., 28 Am. Rep., 1; Perry v. Merritt, L. R., 18 Eq., 152.
    
      
       In Nellis v. Nellis, 99 N. Y., 505, the primary gift itself was expressed to be subject to the “provisions hereinafter contained.”
      In Tompkins v. Fanton, 3 Dem., 4, the primary gift was expressly of ■•an estate for life, with power of disposal during life.
      In both cases the gift over was sustained.
    
   Barnard, J.

The words by which the legacy of $20,000' is given to the testator’s daughter convey" a fee.

The gift is expressed in absolute terms, “ to her and her heirs forever.” The residuary bequest also conveys unmistakably a fee, the words stating a bequest to my said daughter, Mary F. Mead, and- to her heirs.” The testator has used no sufficient words to cut down this absolute-bequest. The words in the will by force of which such a claim is made are as follows : All, each and every of the foregoing devises, gifts and bequests as made in this my last will and testament to my said daughter, Mary F. Mead, are made upon the express condition and my will is that if my said daughter, Mary F. Mead, dies without lawful issue, leaving no child or children, in that event I devise, give and bequeath all that may be left of the property and legacy devised, given and bequeathed to her in this my last will to my brother, Daniel Fields, and my sisters, Maria Hatfield, Harriet Marks, Elizabeth Goodwin and Sarah Hermanee, to be equally divided between each to share and share alike, to them and their heirs forever.

“ I hereby authorize my executor or executrix to see that the above conditions are strictly carried out under any and all circumstances.
“ I order and direct my executor and executrix to pay out of my personal estate the legacy to my said daughter, Mary F. Mead, before any other legacies are paid; her legacy is to take the preference to any and all other-legacies above named.”

By a previous clause of the will the testator directed the legacy “ to be paid to her out of my personal- estate in bank stock, bond and mortgages and other good securities.”

Under the cases applicable to the construction of wills the intent of the will is to govern, and this intent is to-be gathered from the whole will. It is true that a fee may be provided for upon the happening of a condition like the death of the first taker without children, and that a gift in absolute terms may be cut down if so required by the-whole will taken together. The only exception to the limiting of a fee upon a fee upon the happening of a contingency is when an absolute power of disposal is given to the first devisee or legatee to use up the property. In such a case the fee vests in the first legatee. Van Horne v. Campbell, 100 N. Y., 287.

The intent of the testator as I gather it from the will is that the property is to be paid at once to the daughter and that she has the right to use it. And it is only “ all that may be left ’’ at her death which is bequeathed over to the brothers and sisters. This seems to be the only construction fairly to be given. The executors are not to keep the securities, nor are they to apply the increase and such part of the principal as the daughter needs during her life. On the contrary they are to pay it to her in the very assets of the estate, and it is only that which she has not consumed during her life, which is attempted to be the subject of the bequest over. This carried a fee to the daughter.

The plaintiff has therefore no cause of action, because the body of the estate is not subject to the condition attempted by the testator to be applied to his daughter’s property.  