
    Griswold v. Warner et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11, 1889.)
    Wills—Construction—Duration or Estate—Repugnant Provisions.
    A bequest by a testator to his wife of the full and absolute use and control of all his personal estate, to be used and enjoyed for any and all purposes as she should see fit to use in t) le repair of her separate estate and payment of hired help, with the direction that a sum named, or more, if she should desire, should be used in improving the family cemetery, with a provision that whatever should be left at her death should go to a person named, if living, otherwise to testator’s heirs, vests the absolute ownership of the property in the wife, excepting the sum tobe expended on the cemetery; the provision limiting the portion undisposed of at the wife’s death being inconsistent with the absolute power of disposition given, and hence void.
    Appeal from judgment on report of referee.
    The rights of all the parties to this action, as disclosed upon the trial, were based upon the will of Manley Griswold, who died on the 14th day of January, 1870. The will bears .date the 19th day of November, 1869, and the devising clauses of the will are as follows: “ After all my lawful debts are paid and discharged, I give and bequeath to my wife, Laura Griswold, all the real estate of which I may die seised or possessed, in the village of Forestville, with full power to sell and convey the same as she may see fit, and to give a deed of conveyance! thereof. I also give and bequeath to my said wife the full and absolute use and control of all my personal estate, to be held, used, and enjoyed by her as she sees fit, to use in repairs for her separate estate, to pay hired help, as well as to repair our cemetery lot, erecting a family monument thereon, and for any and all purposes she sees fit to use the same for. And 1 hereby direct that she shall lay out the sum of one hundred and fifty dollars on the lot in the old cemetery in which my father and mother are buried, in erecting a monument on said lot for my father and mother aforesaid, and she may expend more if she sees fit. Whatever property shall be left at the death of my said wife I give and bequeath the same to my nephew Benjamin Griswold, should he be living at the death of my said wife. If he is not living, then the same to be divided equally among my heirs at law. Likewise I make, constitute, and appoint my said wife, Laura Griswold, to be the executrix of this, my last will and testament; hereby revoking all former wills made by me.” At the time of his death the testator owned a parcel of land in the village of Forestville, and his personal estate was of the value of about $12,-000. His wife survived him, and he left no children. Benjamin Griswold, the legatee named m the will, was his nephew, and is the plaintiff in this action. He claims that the wife of the testator took a life-estate only in so much of the personal property as should remain after devoting so much thereof as was necessary for the uses and purposes specially mentioned in the will. The action was commenced in the life-time of Mrs. Griswold, and she was made defendant, and the complaint charges that she had in fact given and conveyed to the other defendants a large portion of the personal property, and threatened during her life-time to sell and dispose of the balance, for the purpose of defeating the intention of the testator; which was, as the plaintiff alleges, that the corpus of the personal property, after devoting a portion of the same to the uses mentioned in the will, should be his property and estate. All of the original defendants answered the complaint, and all claim that the widow of the testator took an absolute title to the personal property, and that she had a right to sell and dispose of the same. She admitted in her answer lhat at the time of the commencement of the action she was in the possession of, and had control of, a large portion of the personal property bequeathed to her. It was also admitted by the other defendants that they had received from Mrs. Griswold a portion of the personal property, but they claimed it was in payment for services rendered to her at her request. It was admitted that the testatrix had, before the commencement of this action, improved the cemetery lot, and erected the monuments as directed fn the will. The plaintiff demanded judgment that a receiver be appointed of the property, and that an injunction issue restraining the defendants from alienating, transferring, or giving away the property, and that the defendants Rodney B. and Chester Scott be required to hand over to the receiver so much of tiie property, and the avails thereof, as they have received. Mrs. Griswold, the widow, died after the commencement of the action, and before the trial, leaving a last will and testament, and the defendant Warner has been appointed the administrator of her estate with the will annexed, and upon his own application was substituted as defendant. On the trial the counsel for the plaintiff proposed to prove, as facts, the allegation set forth in the complaint before stated; and thereupon the defendants’ counsel moved that the complaint be dismissed,— claiming that, under the will, the widow took an absolute title to the real and personal property; and the referee sustained the motion, and dismissed the complaint.
    Argued before Barker, P. J., and Bradley and Dwight, JJ.
    
      J. Gf. liei-ord, for appellant. Holt á Holt, for respondents Warner and Chester Scott. S. 13. Fox, for respondent R. B. Scott.
   Barker, P. J., (after stating the facts as above.)

We think the defendants’ contention is supported by the current of authorities, and clearly so by the decisions of the courts of this state. The construction which has been given in similar provisions in other wills requires us to hold that Mrs. Gris-wold took an absolute and unqualified title to the real and personal property of the testator, after applying so much of the personal property as was necessary to carry out the special provisions of the will relative to the erection of monuments on the cemetery lots. The words of the grant are sufficient to convey a title in fee to the devisee of the lands, as those words would have vested a fee-simple in the donee without the aid of the statute, which declares that every grant or devise of real estate, or any interest therein, shall pass on the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or necessary implication. 1 Rev. tit. p. 748, § 1. A gift of land by will, with an absolute'power to sell and convey the same by the devisee, without any subsequent provision or words to qualify the power to sell, is a gift in fee-simple. That case is brought within the rule of the statute making all devises with absolute power of disposal in the devisee gifts in fee.

In considering the other question presented, whether the legatee took more than a life-estate in the personal property, we find nothing in the provisions of the will which controls or limits the right of the legatee to use the same as her own absolute property, except the provision which requires her to use so much thereof as was necessary to carry into effect the provisions for erecting monuments on the cemetery lots. The other special provisions mentioned in tiie will, by which the legatee was at liberty to apply the property, were for her own personal benefit in repairing her separate estate, and in paying the wages of persons in her employ. If we eliminate from the clauses of the will relative to the bequests of the personal property the words used by the testator in giving directions for the special uses to which a portion of the personal property was directed to be applied, the language of the gift would read as follows: “1 give and bequeath to my wife the full and absolute use and control of all my personal estate, to be held, used, and enjoyed by her for any and all purposes which she sees fit to use the same.” This comprehensive language vested in the legatee an absolute title, and gave her the unqualified power to use and dispose of the same in her life-time, or to bequeath the same by will, and, if she did neither, then the same would, by operation of law, go to her next of kin, unless by other words or provisions of the will the legal effect of these words is changed or limited. The only provision indicating any intention on the part of the testator to endow his wife with less than an absolute estate in his personal property is the gift over to his nephew, which follows the bequest to his wife, and is expressed in these words: “Whatever property shall be left at the death of my said wife, I give and bequeath the same to my nephew Benjamin Griswold, should he be living at the death of my said wife.” It is doubtless true, as the plaintiff’s counsel has argued, that the unprofessional mind, accustomed to give written or spoken language its ordinary meaning and significance, would understand, on reading the entire will, that it was the intention of the testator that, 'if any of the property remained undisposed of at the death of his wife, the same was to go to his nephew, the plaintiff. All agree that a provision' that would carry into effect such an intention would be lawful, for it is well established that a remainder may be limited upon a bequest of personal property, including a bequest of money. Smith v. Van Ostrand, 64 N. Y. 278. As has already been stated, by the rule adopted in this state for the construction of wills, it must be held that the testator did not effectually limit the estate of his wife in the personal property to a life-estate therein by the gift over to his nephew. In Clarke v. Leupp, 88 N. Y. 228, the rule was formulated §s follows: “That when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use, and benefit of the estate absolutely to the donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words inferential in their intent. ” The testator, in making the bequest to his nephew, instead of attempting to limit the power conferred on his wife to use and dispose of the property as absolute owner, recognizes that she had. such unqualified right, and in terms confines the gift to his nephew to so much of the property as might be left undisposed of at her death. The gift of the remainder of the personal property to the last-named legatee is clearly and distinctly expressed, and the exact intention of the testator not left in doubt. .The situation of the personal property on the death of the wife of the testator turns out to be, as he anticipated it might be on the happening of that event, a portion of the same remaining not disposed of in her life-time. But the provisions of the will giving such remainder to the nephew of the testator is, as the cases hold, repugnant to the gift of the same property to his widow, and for that reason is inoperative and void. The rule, as collected from the cases decided previous to the case of Campbell v. Beaumont, 91 N. Y. 464, is stated in the opinion in that case, and the judge, after citing several of the leading authorities on the subject, said: “In all these cases it was, in substance, held that, when the property is expressly or by necessary implication to be spent by the pi Ira ary legatee at his pleasure, a further limitation is clearly hostile to the nature and intention of the gift.” The provisions of the will are such as to make a case falling within the rule as stated by the court in that case, and, as the plaintiff’s claim of title is based on a void bequest, the complaint was properly dismissed by the referee.

This result is entirely consistent with the cases cited by the learned counsel for the plaintiff. In Terry v. Wiggins, 47 N. Y. 512, it was held that a gift to the primary devisee in the will then under consideration was for her lifetime only, with a right vested in her to sell and dispose of any part of the property during her life-time for her use and maintenance, and that she had ño absolute right of disposition, and for that reason the power of sale was limited to her life-time, and so much of the real estate as remained unsold at the time of her death did not descend to her heirs at law, but vested in the ultimate devisee named in the will. In that case the provision of the will under consideration was as follows: “I hereby bequeath to my wife, Hannah Youngs, all real and personal estate and effects that I may die possessed of, for her own personal use and maintenance, with full power to sell or otherwise dispose of the same in part or in whole, if she should require it, or deem it expedient so to do, and, after her decease, the residue that may be left of the personal and real estate” was given to adevisee and legatee named. The real pointdecided in that case was that the conditional power of disposition given the primary legatee did not operate to enlarge the estate into a fee. In Flanagan v. Flanagan, 8 Abb. N. C. 413, the gift of real and personal property was as follows, to-wit: “(15) One-third of all the rest and remainder of my estate to my beloved wife, Jane, in lieu of dower, to be hers absolutely, and the use of all the remainder during her life, and the portion left of such remainder to be distributed to the poor of St. Peter’s Church;” and it was held that the gift to the widow gave her the right to dispose of the property devised in any mode she saw fit during her life-time, but not by will, and therefore did not render the gift over repugnant and void; citing the case of Terry v. Wiggins, supra, as authority in support of the construction placed upon the will. The case of Tyson v. Blakie, 22 N. Y. 558, does not support the plaintiff’s argument in any respect. In that case the testator directed his estate to be converted into money, which he bequeathed generally to his four grandchildren, but, in case ene of them whom he named should die without lawful issue, then her share was to be divided among the survivors, share and share alike, to them, their heirs and assigns. It was held there was no repugnancy between the general bequest to the granddaughter and a provision for its diversion in the event of her death without issue; that as to her it was an absolute gift, to be defeated in the case of the happening of the contingency mentioned, and was in effect an executory bequest of personal property, which the law permits; and it was there affirmed by one of the judges that, if there were any words in the will importing that the primary legatee might consume or spend the full sum bequeathed to her, then the attempt to give the same fund to another would be repugnant to the prior disposition. As we have reached the conclusion that the referee properly dismissed the complaint upon the merits, it is unnecessary to answer the objections made by the defendants, that the plaintiff attempted to make out a case for relief which did not exist at the time of the commencement of the action, and is based on facts which occurred after the commencement of the action. Judgment affirmed, with costs of this appeal to the respondents, to be paid out of the estate. All concur.  