
    Sally Meeker, Respondent, v. Jennie Draffen, Respondent, Impleaded with William Draffen, Her Husband, and William Barrett, Defendants, and Nellie Meeker, Individually and as Administratrix, etc., of Charles G. Meeker, Deceased, Appellant.
    Third Department,
    March 9, 1910.
    Will — annuity—when lien on land—bequest to son’s widow—rights of second wife — appeal ^-modifying judgment
    Where a'testator devised lands to his son subject to an annuity to testator’s .widow for life, and the will provided that “the annuity above mentioned is hereby made a lien upon the real estate hereinafter devised to my said son,” annuities unpaid at the death of the son are a lien upon the lands. The widow is not compelled to look to the son’s estate for payment, but can enforce her lien directly. By allowing the annuities to remain unpaid she did not waive her lien.
    Where the testator provided that, in case his widow survived his son, the lands should be divided equally between the testator’s wife and the “son’s widow and-child or children,” and the son’s wife having died after the testator, he married again, his second wife is entitled to share equally with his child in one-lialf of the lauds. A devise or bequest to a wife of a designated person is equivalent to naming her, but the word "widow” has a broader application and includes whoever answers the description.
    Where all the facts are found upon a trial at. Special Term, but the conclusions of law are erroneous, the Appellate Division will modify the judgment to conform to the facts found.
    Appeal by the- defendant, Hellie Meeker, individually and as administratrix, etc., from an interlocutory judgment of the Supreme Court in .favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 27th day of September, 1909, upon the decision of the court, rendered after a trial at the.Delaware Special Term, directing a sale in the above-entitled partition action.
    
      G. R. O'Connor and E. D. Wagner, for the appellant.
    
      ■ C. I. Andrus and F. M. Andrus, for the respondents.
   Houghton, J. :

Hiram Meeker died in 1889, leaving a last will and testament by which, amongst other provisions, he bequeathed and devised by the 3d paragraph the farm upon which he and his son and family resided, and the stock and implements thereon, to his son Charles (t., subject to the payment by such son to his widow, this plaintiff, of a yearly annuity of one hundred dollars, which annuity was made a lien upon the real property. The will contained the following additional provision : “ Fifth. I do further provide that in case my son Charles G. Meeker should die- before my wife, then and in that case-it-is my will that the property, real and personal, hereinbefore devised and bequeathed to my said son in the third paragraph hereof, shall be equally divided between my said wife and my son’s widow and child or children; that is,-my wife to have one-half thereof and my son’s widow and child or children the other half:”

At the time of the execution of the will Charles was married to Isabella and'they had a young daughter, Jennie. The wife Isabella . died and Charles married the appellant Nellie Meeker. Thereafter 1 he died leaving him surviving his mother this plaintiff, his. widow the appellant, and his only child, defendant Jennie Draffen.

Thereupon the plaintiff brought this action in partition alleging that the annuity for Several years prior to the death of Charles had not been paid and asked that it be declared a' lien upon the land; and also alleging that she and the daughter Jennie were equal owners of the real property subject to such lien, and that the widow Nellie was entitled to no interest therein. The trial court found that the unpaid annuities at the death of Charles were a lien upon the property, and that the widow Nellie had no interest therein because the term “ my son’s widow ” referred to and was intended to designate liis son’s then wifé Isabella and not any subsequent wife who might become his widow.

We concur with-the learned trial court in his conclusion that the annuities unpaid- on the death of Charles were a lien upon the real property devised. In the paragraph of the will providing for such annuity the language is, -“ the annuity -above mentioned is hereby made a lien upon the real estate-hereinafter devised to my said son Charles G. Meeker during the life of my said wife.” By allowing such annuities to remain unpaid the plaintiff did not waive any lien she might have' on the real property for their payment. On the death of Charles, although she had permitted him to become delim quent, she was not compelled to look to his estate for payment. She could do so if she chose, but she could also enforce her lien if she elected so to do. While Charles owed the unpaid annuities, still they remained a lien on the lands in whosever .hands they might come on his death. Nor were the. annuities which were secured by such lien merged when one-lialf the real property passed to the plaintiff under the provisions of the will upon the death of Charles. Of course, in the practical outcome under a partition sale herein if the plaintiff deducts-one-lialf of her lien from her one-half share her remainder of the proceeds will be so much less. The owners of the other half, however,' Cannot complain of this because as to their half there was clearly no merger and the moiety which passed to them is subject to one-lialf the lien in any event.

We are of the opinion, however, that the appellant, Nellie Meeker, widow of the son, Charles G. Meeker, is entitled to a one-quarter interest in the real property subject to its aliquot part of the lien of the unpaid annuities. While it is possible that the testator had in mind only Isabella, the then wife of his son, the language which he used in his will is' so broad that it must be deemed to refer to such widow as his son might leave on his death. He did not name Isabella nor did he use the word “ wife.” In making provision for the division of his property in case his son should die prior to tlie death of his own wife the testator necessarily referred to the future. At the time of the making of the will his son Charles had but one child and yet he made provision for his “ child or children.” He did not say that his property should be divided amongst his own wifeymd the child or children of his son “ and the wife of his son,” but his “ son’s widow.” If Charles had not remarried he would have left no widow. . Having- remarried, the widow which he left was this appellant and she comes within the precise wording of the will. .Unless there be something in a will indicating the contrary, a gift to the “ wife ” of a designated married man is a gift to the wife existing at the time of the making of the will and not to one whom lie may subsequently marry. ( Van Brunt v. Van Brunt, 111 N. Y. 178; Van Syckel v. Van Syckel, 51 N. J. Eq. 194.) A gift to the “widow” of a designated person, however, has a broader application and includes such wife as may survive him. (Schettler v. Smith, 41 N. Y. 328; Swallow v. Swallow’s Admr., 27 N. J. Eq. 278.)

In speaking of the holding in Schettler v. Smith (supra), Finch, J., in the course of his opinion in Van Brunt v. Van Brunt (supra), says: “The-court very properly held that the use of the word ‘widow’ plainly included arty wife who might survive him.”

■ And in Swallow v. Swallow's Admr. (supra), the chancellor says: “ It could not, of course, be ascertained until the death should have occurred who would answer the description—who would' be the ■ widow. The provision is not declared to be in favor:of any person living at the date of the will nór is the language employed to be so construed. ■ The gift is not to the wife of therdecedent but to his, . widow,, the person.who should be his wife at the time of his death.”

The above casés clearly illustrate the difference in meaning to be attached to the words “ wife ” and “ widow ” as: used in bequests and devises. Davis v. Kerr (3 App. Div. 322) is not to the contrary. In the will t]iere under consideration the term wife was first used and she was subsequently referred to as widow, and the court very properly held that the term widow referred to the wife previously designated. • If a wife exists at the time of the making of the will the designating of her as such is practically denominating her by name, and no subsequent wife can take. The term widow ■ includes the person who answers that description on the death of the designated person.

When the language of á will is clear and definite it must be interpreted in its ordinary meaning and the testator must be deemed to mean what-he says. We think it would be.doing violence to the language of the present will to Iy>ld that no widow of Charles except Isabella could take the devise provided by the will.

All the facts are found, and as a conclusion of law it was determined that the .appellant had no interest in the real property. .It is proper, therefore, that we should modify the judgment' by strik- • ing out that portion declaring that the appellant Nellie Meeker has no interest in the property, and inserting in place thereof that' she has an undivided one-quarter interest therein subject to the lien of the plaintiff for her unpaid annuities.

As so modified the judgment is affirmed, without costs to either ‘ party.-

All concurred.

Judgment modified by striking out that portion declaring that the appellant, Kellie Meeker, has no interest in the property, and inserting in place thereof that she has an undivided one-quarter interest therein subject to the lien of the plaintiff for unpaid annuities, and as so modified affirmed, without costs to either party.  