
    Charles P. Metcalf, Appellant, v. The Crystal Brook Park Association, Respondent.
    
      Right given to one devisee “ of spreading hay” upon land, devised to another—held to he a personal privilege which ended with the death of the first devisee.
    
    The will of a testator who died in 1799 provided:
    “Item. I give and bequeath to my oldest daughter, Huldah Tooker, all my neck of land that I now live on call (sic) Christie crook neck together with all the salt meadow adjoining said neck. * * *
    “ Item. I give and bequeath to my daughter, Nancy Tooker, all the remainder of my lands and meadows wherever they may be found, cither on deed or record, to her and her heirs forever. * * * also, it is my will that Nancy should have the privilege always of spreading hay that she may cut in the harbor on the neck which I have given to Ahuldah, and of carting it through said neck in a reasonable manner.”
    
      Held, that the privilege given to Nancy, of spreading hay on the neck, was a personal privilege or right in gross, which terminated at her death;
    That this construction was supported by the fact that, at the time of the testator’s death, words of inheritance or perpetuity were necessary to create or convey an estate greater than a life estate, and that the testator had made use of such words when devising the real estate and omitted them in granting the privilege to Nancy.
    Appeal by the plaintiff, Charles P. Metcalf, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 17th day of November, 1900, upon the decision of the court rendered after a trial at the Suffolk Special Term.
    
      Thom,as J. Ritoh, Jr., for the appellant.
    
      A. A. Spear, for the respondent.
   Sewell, J.:

The appellant is the owner of an island in Mount Sinai harbor, known as Tooker’s island. The respondent is the owner of the mainland near said island, known as Crystal Brook neck or Tooker’s neck. Nathaniel Tooker, the common source of title, died in 1799, leaving a will, the material portions of which read as follows, viz.: “ Item. I give and bequeath to my oldest daughter, Huldah Tooker, all my neck of land that I now live on call (sic) Christie crook neck together with all the salt meadow adjoining said neck. * * *

“ Item. I give and bequeath to my daughter, Nancy Tooker, all the remainder of my lands and meadows wherever they may be found, either on deed or record, to her and her heirs forever. * * * also, it is my will that Nancy should have the privilege always of spreading hay that she may cut in the harbor on the neck which I have given to Ahuldah, and of carting it through said neck in a reasonable manner.”

The plaintiff derived title to the island through mesne conveyances from Nancy Tooker, to whom the island passed under her father’s will. The title to Crystal Brook neck came by successive conveyances. to the defendant. This action was brought by the plaintiff to recover damages for being prevented from spreading on the neck of land in question the hay cut on the island. . The vital point in the plaintiff’s case is involved in the construction and mean ing which should be given to the clause of the will granting this privilege to Nancy, since he cannot succeed in this action unless the privilege granted was of such a character as to be in the nature of an easement which attached and passed as an appurtenance to the land devised to her. It is quite obvious from reading the will that no such easement was granted. The principal requisite- of an easement is that it be imposed upon corporeal real property for the benefit of corporeal real' property, and that there be two distinct estates, the dominant and the seíwient. (Bouv. Inst. 1602; Nellis v. Munson, 108 N. Y. 453.)

The will did not provide in terms or by implication that Nancy shall have the privilege of spreading Or carting the hay cut on the island or. from any other land devised to her. No distinct dominant estate is described or mentioned in the will, to which the privilege could attach or be appurtenant. The contention that the clause should be read as if the testator had written: “ It is my will that Nancy should have the privilege always of spreading hay that she may cut on the island,” is subject to the objection that such a construction requires something to be inserted that her testator never assented to. He used no words which necessarily connected the privilege granted with the occupation or enjoyment of any land owned or devised by him. There is nothing in the will to indicate that the testator intended to connect the privilege granted with another tenement. The words, “ hay that she may cut in the harbor,” in their immediate connection, are only descriptive of the hay that may be spread, and have no reference to any distinct piece or parcel of land to be benefited by the grant or privilege. They only serve to identify and define the privilege granted, which is general, in that it is not limited to the island or to the land owned by the testator. Only by the use of plain and direct language of a grantor, should it be held that he created a right in the nature of an easement and attached it to one parcel as the dominant estate and made the other servient thereto for all time to come.” (Clark v. Devoe, 124 N. Y. 120.)

It is clear from the provisions of this clause standing alone that the privilege impressed upon the land was intended as a mere personal privilege or right in gross in favor of the plaintiff’s grantor which terminated with her death. The intention of the testator to create an easement, right or privilege personal to the plaintiff’s grantor also appears from the fact that the grant is without words of inheritance dr perpetuity, which was then necessary to convey anything more than a life estate. Prior to the adoption of the Revised Statutes (1 R. S. 748, § 1), in 1830, the term “heirs” or other words of inheritance were required to create or convey an estate in fee.

It is a familiar proposition that a testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense. (Harvey v. Olmsted, 1 N. Y. 489.)

It is evident that the testator knew that words of inheritance were necessary, from the use of them in the clauses of the will devising the real estate, and the omission of them in granting the privilege must be construed as evidence of his intention to limit the grant to the lifetime of RTancy. The whole instrument shows an unmistakable intention that the privilege should not be permanent or apply to any one but the grantee named. That was the established construction of a devise containing no words of limitation at the time of the making of the will. It is the literal and hence natural interpretation of the language used, and as the parties stand in the place of their common grantor each is held to a strict construction of the? words of the grant.

We have, therefore, come to the conclusion that the grantees of Nancy Tooker did not become entitled to spread their hay upon the land devised to Ahuldah, and that the acts of the plaintiff in spreading his hay upon the defendant’s lands were unlawful'; that-the defendant did not interfere with any rights of the plaintiff in removing the hay, and that the judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  