
    Baumgras v. Baumgras.
    (Supreme Court—Onondaga Special Term,
    August, 1893.)
    The will of B., who died leaving only real estate, provided : “ I give and bequeath to my wife, Ophelia Baumgras, all my real and personal property, to be by her owned and enjoyed, the same as if I had never owned it, during her lifetime, and after her death whatever may be left is to be divided among my eight children in eight equal parts.” Held, that the wife took a life estate, and in addition thereto such part or all of the principal which during her life she might use and consume in the enjoy-' ment thereof, together with the power to sell and convey the principal or any part thereof in fee ; and whatever part of the property remained • at her death passed to the children in equal shares.
    
      Held, also, that the interest of each child being only a contingent remainder, an action for partition could not be maintained.
    Action for partition. The opinion states the case.
    
      C. H. lewis, for plaintiff.
    
      C. H. Baldwin, for defendants, Ophelia Baumgras et al.
   Wright, J.

The plaintiff claims to own an undivided eighth part of the premises as an heir of William Baumgras, deceased, and the defendant Ophelia Baumgras claims absolute ownership thereof by virtue of the last will and testament of said William Baumgras, which provides as follows :

“ I give and bequeath to my wife, Ophelia Baumgras, all my real and personal property, to be by her owned and enjoyed, the same as if I had never owned it, during her lifetime, and after her death whatever may be left is to be divided among my eight children in eight equal parts.”

The questions to be determined are, is the estate which the will vests in the defendant Ophelia Baumgras, a life estate only, or is it an estate for life with a beneficial power of disposition which may be exercised during her life, or is it a fee absolute?

The fundamental rule for the construction of wills is that effect must be given to the intent of the testator. That intention, when ascertained, is the absolute controlling power. Crozier v. Bray, 120 N. Y. 379. Chief Justice Marshall, in Smith v. Bell, 6 Pet. 68, states the rule in the following-forcible language: The first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law.” That intent is to be obtained from the language of the will when read in the light of all the circumstances which surrounded the testator at the time of its execution. To ascertain that intention every word, phrase, clause and sentence must be given its due force and effect, and as Judge Vann remarks in Crozier v. Bray, 120 N. Y. 379. “ that intention is the absolute criterion of construction.”

The testator, an unprofessional man, drew the will. The disposing part of it is contained in one sentence, and is remarkably terse. The testator evidently weighed every word, and intended it to have force.

At the time of making the will he was seized of real estate situated in Syracuse worth about $35,000, part of which was subject to a mortgage of $4,500. He had no indebtedness besides said mortgage, and had no personal property. He had eight children, two of whom were minors, and three of whom were living at home, and dependent upon him for their support, maintenance and. education.

The first clause of the will conveys to Ophelia Baumgras not only the enjoyment but the ownership of the real estate,' which includes the power of sale and conveyance by deed, mortgage or otherwise. During what length of time is that right of enjoyment and ownership to continue ? The íoIIoaving clause answers that question, “ during her lifetime.”

This clause limits the prior clause. Her power over the property is absolute during her life, and no longer. She can ' dispose of it by an act taking effect during her life, but not by will, which takes effect,' only at death.

This is in harmony with the next following clause, wherein the testator contemplates a remainder, for he does not entirely release his controlling hand over his estate after his devise to his wife. "What kind of a remainder does he contemplate, a remainder, consisting at all events, and absolutely, of the entire corpus of the estate ? The next following clause answers that question, “ and after her death whatever may be left is to be divided,” etc.

What effect is to be given to the words, whatever may be left ? ” He had in mind the possibility that under his wife’s right and power of ownership and enjoyment, the corpus of the estate might be diminished, and even entirely disposed of, used and consumed in that enjoyment, for the manner of such enjoyment, and the amount takeii therefor, is to be determined solely by her own desires and volition. Unless this be true, those words, whatever may be left,” have no force, for if she had no power of disposition, the entire corpus .of the estate would be left at her decease absolutely intact; but it is more reasonable to believe that to the plain mind of this business man these words were not 'valueless, but were fraught with deep meaning.

It is clear that it Avas not the intention of the testator to confer upon his wife the fee in the land, giving her the power to dispose of it by will to any object of her bounty, and thus possibly cut off the children, or some of them, from their share of a possible or probable remainder. The power which she possesses must be exercised during her life.

The testator emphasizes the right of ownership and enjoyment of the property given to his wife, by stating that it shall be owned and enjoyed by her the same as if I had never owned it; ” yet the limitation over restrains their effect, and prevents the fee from vesting in her.

In this construction of the will, no violence is done to any word, phrase or clause, but due force and effect is given to each of them. But upon the postulate that the widow takes only a life estate, it is necessary to strike out of consideration, as meaningless, the clause respecting her ownership, “ the same as if I had never owned it,” and the clause, “ whatever may he left; ” and upon the postulate that she takes the fee, it is necessary to strike out of consideration, as meaningless, the clause, “ during her lifetime, and after her death whatever may be left is to be divided among my eight children in eight equal parts,” etc.; either proposition requires a mutilation of the will in substance as well as form.

Therefore, I hold that the widow owns a life interest in the property, and in addition thereto she owns any part or all of the principal, which during her life she may use up and consume in the enjoyment thereof, with the power to sell and convey the principal or any part thereof in fee, and that the property, if any, remaining at her death, will pass to the eight children in equal shares.

This view is sustained by the latest authorities. In Leggett v. Firth, 132 N. Y. 7, the will contained this clause : “ I also give, devise and bequeath to my wife, Ellesheba, all the rest and residue of my real estate, but on her decease the remainder thereof, if any, I give and devise to my said children or their heirs respectively, to be divided in equal shares between them.” It was held that the widow took a life estate, with power of sale, to be exercised during her life for her own benefit, and that the children took a remainder in fee, subject to the exercise of that power.

Judge Vann in his-opinion says: “ The remainder, if any, means the same as ‘ if there shall be any remainder,’ and the gift over is of what may be left,” and as it would all be left unless there was a rightto dispose of it, it follows by necessary implication that he intended his wife should have that power.”

Thus, in constituting a gift over, the words the remainder, if any,” and the words “ if there shall be. any remainder,” are precisely equivalent in meaning to the words of this case, ■“ whatever may be left,” when used in contexts which have the same meaning.

In Thomas v. Walford, 16 N. Y. St. Repr. 764, the following clause was under consideration: I give and bequeath to my wife, Eliza J. Thomas, all of my real and personal estate that I may die possessed of, during her lifetime, and at my wife’s death the property, should there be any left, to be ■divided among the children or their heirs.”

It was held that the widow took an estate for life, with a potyer of disposition during life, with a remainder over of what was left of the estate upon her death to the children.”

Judge Yah Bettst in his opinion says : Here is expressed a clear intention that the widow shall have the power of disposing of the corpus of the estate with a view to her personal ■use and maintenance. She has, therefore, during life, the power of disposition of the estate •—• the power to consume or ■dispose of it, as might become expedient or' necessary to secure for her its beneficial enjoyment; and upon her death such estate as had not been consumed by her is devised to the •children.”

In Reinders v. Koppelmann, 68 Mo. 482, the testator gave to his wife his property during her life, and made a limitation •over of “the property left” on her decease. It was held that the power of disposition was to be implied, but could be exercised by her only during life, and as a consequence that .she did not take the absolute property. In Flanagan v. Flanagan, 7 Abb. N. C. 413, the testator gave to his wife the use of a remainder during her life, and ■ the portion left of said remainder to be distributed to the poor of St. Peter’s ■Church. It was held that the wife took an unqualified, unlimited, absolute power of disposition of the fund, save that the power must be exercised during life and not at death,” and that “ the remainder over was contingent upon the omission of the donee to dispose of the fund during life, and only to extend to the portion left ’ undisposed of by her at her decease.”

Judge Bocees in his opinion says : “ It was plainly intended * * * that the widow should have the power to dispose of the fund at will during her life * * * that she might diminish it even to a possible exhaustion of it * * nor

was there any limitation whatever upon the power of disposition by the legatee for life, save that it was one which must be exercised in a mode other than by a last will and testament.” To the same effect are Burleigh v. Clough, 52 N. H. 267, where the testator gave to his wife all his estate “ to her use and disposal during her natural life,” with gift over of “ what is remaining at her decease; ” and Thomas v. Pardell, 12 Hun, 151, where the testator gave his wife all his estate “to be possessed and used by her at her discretion and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount, the increase and the residue, whether more or less, left sacred to the purposes to which we mutually agree to devote it * * and all my estate * * * in her possession and held by her, up to and at the time of her decease * * * I give and bequeath,” etc.; then follows a gift over. Also Crozier v. Bray, 120 N. Y. 379, and Terry v. Wiggins, 47 id. 512. Though this devise and power do not enlarge the estate unto a fee, yet under the power she can convey the fee to a purchaser. 1 R. S. 732, § 81.

The theory laid down in the prevailing opinion in Van Horne v. Campbell, 100 N. Y. 287, holding that where an absolute power of disposition (express or implied) is annexed to a primary devise in fee, it is deemed conclusive of the existence in the devisee of an absolute estate in fee, and renders void a limitation over which depends upon the non-execution of that power by the first taker, is no longer followed, it apparently having been made without an examination of 1 Revised Statutes, 725, sections 32 and 33, which provide as follows: •

“ § 32. No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction or forfeiture of such precedent estate by disseizin, forfeiture, surrender, merger or otherwise.

“ § 33. The last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner or by any act or means which the party creating such estate shall, in the creation thereof, have provided for, or authorized, nor shall an expectant estate thus liable to be defeated, be on that ground adjudged void in its creation.”

The dissenting opinion of Judge Ruger in that case is now followed. See Leggett v. Firth, 132 N. Y. 7, also the General Term opinion in that case, 25 N. Y. St. Repr. 332; Rose v. Hatch, 125 N. Y. 427 ; Rice v. Taylor, 23 N. Y. Supp. 429.

. The case of Campbell v. Beaumont, 91 N. Y. 465, is clearly distinguishable from the one at bar. In that case the first sentence gave all the testator’s property to his wife absolutely without qualification. Then followed in another independent sentence a gift over. It was held that the two provisions were squarely inconsistent with each other, and that the limitation was consequently void. But in this case the devise is expressly “ during her life,” and the limitation over is com tained in the same sentence with the primary gift.

The plaintiff’s interest in the properly being, therefore, only a contingent remainder and not a vested one, he cannot maintain this action. Oode Civ. Proc. §§ 1532, 1533.

The complaint must, therefore, be dismissed, with costs.  