
    Fremont K. Noble, Appellant, v. Newell Thayer and Others, Respondents.
    
      Devise of all a testator’s real estate to his wife for life, followed by a devise of apart of it to a daughter the gift to the daughter takes effect upon the termination of the life estate — liability of oné in possession for the rent.
    
    A testator, after giving by the first clause of his will the use of all his real estate to his wife during her life, by the second clause devised specific real' property • to his son, and expressly declared it to be subject to the use of his wife for life; by the third clause he devised specific property to a daughter Emma, but did not state that the devise should be subject to the life estate of bis wife, and this provision was also, omitted from the fourth clause, in which he devised 110 acres, specifically described, to his daughter Lucelia for life, with remainder" over to- her children. The fifth and last clause disposed of his personal prop-, erty “after the death of my wife.” It further appeared that, about three months after, he had executed his will, the testator leased to his daughter Lucelia, for the term of his own life and that of his wife, the same premises which he had by the fourth clause of the will devised to Lucelia.
    In an action brought by an assignee of the wife to recover rent falling due under the lease after the death of the testator,
    
      Held, that in order to give effect both to the devise by the testator of all his real estate to his wife for life, and to his subsequent devise of part of it to his daughter Lucelia, the court would construe the latter gift as intended to take effect upon the termination of the life estate of the wife;
    That, as the wiife had succeeded to the reversion held by the testator in the leased premises, her assignee was entitled to recover such rent falling due under the lease after the death of the testator;
    That, as it appeared that Lucelia had died intestate before the testator, and had left children and a husband, the latter of whom, although not appointed her administrator,, had subsequently taken possession .of the demised property and had paid the rent to the testator and lessor as long as the testator lived, and to his wife for the year after the testator’s death-, he would be deemed to be an assignee of the lease in possession, and as such was liable for the rent so long as he occupied the premises;
    That, as the children, although entitled, under their mother, Lucelia, to a distributive share of the lease or of its value, had never .assumed any relation to the premises which would make them liable for rent, there could be no recovery against them.
    Appeal by the plaintiff, Fremont K. Noble, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 2d day of " March, 1897, upon the decision of the court rendered after a trial at the St. Lawrence Special Term dismissing his complaint, with costs.
    
      
      Joseph George, for the appellant.
    
      Conger & Orvis and George W. Parker, for the respondents.
   Parker, P. J.:

I cannot discover anything in the terms of the lease which gives the wife Anna any interest in the rent thereby reserved. If, however, she has succeeded to the lessor’s title to the premises therein described, she is entitled to recover the rent 'accruing after his death. (12 Am. & Eng. Ency. of Law, 732; Van Wioklen v. Paulson, 14 Barb. 654.)

The question, therefore, is, whether she takes that title during her life, by virtue of the 1st clause of the lessor’s will, or whether such premises, by the 4th clause thereof, are given to the lessee Lucelia and her children.

By the 1st clause the use of all the testator’s real estate is given to his wife Anna, for and during her natural life. By the 4th clause, “ the use and occupancy ” of 110 acres specifically described — and being the premises leased—are given to his ■ daughter Lucelia for life, remainder over to her children. No provision or suggestion is made in this clause that such taking by Lucelia is to be subject to the wife’s use of the same. Is this 4th clause, therefore, so repugnant to the 1st that the 1st must be deemed inapplicable to the particular lands in question ?

The rule of construction applicable to this case may be stated as follows: “ If possible, the court will reconcile two dispositions apparently inconsistent, and in so doing will endeavor not to disturb the first further than is absolutely necessary to give effect to the second. But if they are absolutely irreconcilable, the posterior in local position is to be preferred.” (29 Am. & Eng. Ency. of Law, 363-366; Van Vechten v. Keator, 63 N. Y. 52.)

If a specific parcel of land is, by the 1st clause of a will, given to A., and the same parcel is, by a subsequent clause, given to B., the gifts are so evidently inconsistent that both, cannot stand. If the 1st is to be sustained at all, no effect whatever can be given to the 2d. In such a case the last clause would control. But if, by the 1st clause, such parcel is given to A. for life only, then the subsequent devise of the same to B.— although no reference is made in it to the former devise and no limitation whatever put upon its immediate- enjoyment—can be given effect by construing it as a devise of the remainder only. (See 1 Jarman on Wills, 475; Norris v. Beyea, 13 N. Y. 283.)

A similar condition is presented by the case before us. The wife is given the use 'for life of all the real estate, which,, of course, includes the 110 acres in question. Subsequently those same acres -are given' to Lucelia and her children. - Effect is easily given to both of those devises by holding that the latter gift was ■ intended to take effect upon the termination of the first. . Any .other construction, however; must cut down the prior gift to the extent, of these 110 acres, and violate .the rules above quoted.

It is argued, however, that, because in the 2d clause of the will ■the devise to his son is expressly declared to be subject to the wife’s use for life, and that in the 3d and. 4th clauses that provision is omitted,'but is again taken Up and so expressed in the 5th clause, an intention on the part of the testator is apparent to -cut down the gift made by the 1st clause and to-except therefrom-the-two-parcels of land -deviséd by the 3d and 4th clauses; that the testator evidently intended to' do differently by his daughters than he did by his son, otherwise h,e would have used the same language in the devise to each- and in express terms have made the devise to Emma and Lucelia subject to their mother’s, use.. The intention claimed from those facts is not sufficiently apparent to control- the construction of this will in'accordance with the rules above stated. It ,'is not -entirely certain that he did not intend the phrase, “ after the death of my beloved wife ..Anna,” used in the 2d clause, to extend to "and affect the gifts of the several parcels of his real estate -separately devised by the other clauses. His general scheme seems to have been to give the use of all his property to liis widow for her life.. This he does by the 1st clause. Then, he proceeded-to. partition , his real estate among his Children and- their heirs, particularly'specifying the parcel which he wished each to take. This he does by the 2d, 3d and' 4th clauses of the will, and if' he had'not numbered-the 3d and 4th clauses,- but had made the devises all under the 2d clause, the phrase at the beginning of, it, above .quoted, would very easily and naturally apply-to each devise. .He was deal'-' ingwith real estate, the use of which he had. already -given 'to his wife, and naturally the partition thereof which' he was then -making among his three children he assumed would be taken by all of them subject to that use. Then by a separate and last clause he proceeded to dispose of the estate which he had not already disposed of, viz., the personal property after its use by the wife had ceased, and he would naturally again use the phrase “ after the death' of my beloved wife ” in order to accurately designate the property to which he then referred.

There is another fact before 'us that should be considered in our effort to ascertain the intent of the testator in regard to this devise. About three months after he executed this will he made a lease to his daughter Lucelia of the 110 acres devised to her by the 4th clause of his will. By that lease a rent of $166.60 per annum is reserved to himself, and the term of the lease is fixed for and during the term of his own life and of Anna, his wife. Having the disposition of the 110 acres which he had made by his will then in his mind, as he must have had, the fact that he prolonged the term of the letting after his own life and during that of his wife indicates that he did not then understand that by such will his daughter Lucelia was to enter upon the use and enjoyment of it immediately upon his death. Why would he provide for her paying rent to any one after his death if he had by his will provided that she should at once, upon the happening' of that event, be entitled to the use thereof ? The fact that he inserted the name of his wife in the lease and so extended the term for paying rent during her life, indicates that he intended his daughter Lucelia should pay rent so long as his wife lived; and such fact, in connection with the provision of the will giving his wife the use of all his real estate, is a strong indication that he intended his wife to have the rent from such premises so long as she lived. For that reason the term of the letting was made to extend during the life of the wife. And the making of such a lease is inconsistent with the construction of his will for which the respondents contend.

I conclude, therefore, that the wife Anna has succeeded to the reversion held by the testator in the leased premises, and that her assignee, this plaintiff, is, therefore, entitled to recover the rent reserved thereby and now owing thereon.

The question remains, who of these defendants are liable to pay the same. The lessee, Lucelia Thayer, died in 1884. The lessor ■died in 1893. This actionis brought to recover for rent accruing since March 1, 1894.

The husband, Newell Thayer, and the two children,-heirs at law and next of- kin of the lessee, Lucelia Thaver, are made' defend.ants, and judgment'for such rent is asked against' them all. The interest of Lucelia Thayer in the premises under the lease'was a chattel real,, and upon her death passed to her personal representatives. (Code Civ. Proe. § 2712.) It appears that she died intestate, and it does not appear that any administrator has ever been appointed for her estate. Upon her death, however, her husband took the possession which she had under such lease and still holds the same, and he paid the rent to the lessor so long as he lived, and to the wife Anna for the amount due in 1894. Under such circumstances' he may be deemed an assignee.of the lease in possession, and would be liable for the rent so long as he remained in possession. (Frank v. N. Y., L. E., etc., R. R. Co., 122 N. Y. 197, 215. See, also, Pugsley v. Aikin, 11 id. 494.)

As t.o the two children, however, although on a" filial distribution of her estate they would be entitled to a distributive share of the lease or its value, they have never as yet assumed any relation to it which would make them liable for rent under it. They have never taken possession of the premises nor enjoyéd the use and benefits therefrom. All that has been appropriated by the husband, and he first is entitled to- administer on the estate. There is no privity either by contract or estate which renders the daughters liable for the rent, and the complaint as to them was properly dismissed.

■ As to Newell .Thayer, however, the dismissal of the complaint was an error,, and as to him the judgment must be reversed.

The judgment in-favor of Newell Thayer reversed, and as to him a new trial granted, costs to abide the event; as to. the defendants Luetta Grossman and Bertha Thayer, the judgment is affirmed, with costs.

All concurred.

Judgment in favor of Newell Thayer reversed, and as to him a. new trial granted, costs to abide the event, and as to defendants Luetta Grossman and Bertha Thayer, judgment affirmed, with costs.  