
    Herbert Mee, an Infant under the Age of Fourteen Years, by Edwin A. Watson, his Guardian ad Litem, Respondent, v. Henry W. Gordon and Others, Appellants, Impleaded with Elizabeth Illensworth and Others.
    
      Will — a construction, which makes it valid preferred — an absolute gift can only be limited by words of equal force — when the words “'the share due my brother John B. Mee be invested,” etc., do yot limit a previous absolute gift of such share:
    
    Where a will is 'subject to either of two constructions, one of which will give effect to it and the other render it void, such construction is to be given as will prevent intestacy if that result can be obtained by a reasonable and unstrained interpretation: - x
    
      An absolute gift is not cut down or limited by subsequent language unless the intent to do so appears in as clear and unmistakable language as that which, expresses the absolute gift.
    The will of a testator provided: ‘‘I give, devise and bequeath my estate to be equally divided between my sister Elizabeth Illensworth, my brother John B„ Mee, my nephew William P. Illensworth, and my niece Florence C. Illensworth, share and share alike. I hereby direct that the share due my brother John B. Mee be invested by my executors for his benefit during his natural life and for the benefit of his wife and his issue after his death.”
    
      Held, that the testator’s brother, John B. Mee, took an absolute fee in one-quarter of the testator’s real estate and not simply a life estate therein. Patterson, J., dissented.
    Appeal by the defendants, Henry W. Gordon and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of December, 1904, upon the decision of the court rendered after a trial at the New York Special Term in a partition action. -
    
      George H. Taylor, Jr., for the appellants Gordon.
    
      Henry W. Bookstaver, for the appellant Heubner.
    
      Gerard Roberts, for the respondent.
   McLaughlin, J.:

The plaintiff claims that he is the owner of an undivided one-eighth interest in certain real estate in the city of New York, and has procured an interlocutory judgment establishing such claim and directing a partition.

The appellants deny that he has any interest in the real estate, and the question to be determined is 'one of law, there being no dispute as to the facts, which are as follows: Harriet M. Kemp died on the 6th of November, 1899, seized of the premises described in the complaint. She left a last will and testament, which was admitted to probate, by which she first gave all of her property, both real and personal, to her husband, William M. Kemp. The will then contained the following provision : In the event of my husband and myself dying at one and the same time, or within a short period of each other, I give, devise and bequeath my estate to be equally divided between my sister Elizabeth Illensworth, my brother John B. Mee, my.nephew William P. Blensworth; and my niece Florence 0. Blensworth, share and share 'alike. I hereby direct' that the share due my brother John B. Mee be invested, by my executors for' his benefit during his natural life and for the benefit of his wife and his • issue' after his death.” William M. Kemp, the husband, died a few days prior to the testatrix, and the question to be determined turns upon whether the brother, John B. Mee, upon the death of the testatrix, took-a life estate or an absolute fee to the real estate in question. The brother, apparently acting upon the assumption that he had the 'fee title-to an undivided one-fourth interest in .such estate, on the 3d of May, 1901, conveyed the sanie to the appellant.Henry W. Gordon. Shortly thereafter Mee died intestate, leaving a widow and 'an infant son; this plaintiff,• who, by guardian, has brought this •action upon the theory that his. father only had a life estate and upon his death one-eiglith of such real estate descended to him.

■ The learned justice sitting at Special Term sustained the contention of the plaintiff, and'from a judgment entered upon a decision to this effect Gordon has appealed.

I am of the opinion the judgment should be reversed." The testatrix,; in the 1st sentence of the clause of the will quoted, devised the real estate in question absolutely to the four persons named therein, in equal shares. Her intent to make such disposition of it; is expressed in appropriate words in such a way that it cannot possibly be' misunderstood, and were it not for the succeeding sentence no doubt whatever could be raised on that subject. The succeed-: 'ing sentence, however, tends to render the preceding one somewhat obscure, inasmuch .as it would seem to possibly indicate that' she ■desired to give to thfe brother, only a life estate, and after his death a life estate to his widow and tins plaintiff. This attempt; however, was ineffectual under a well-recognized rule applicable to the- construction of wills.' To' give the clause this construction would render tit void so far as the brother was concerned, inasmuch as it would suspend the power of alienation for the life of the- brother, his wife and this plaintiff (Real Prop. Law [Laws of 1896,. chap. 547], § 32),. and to this extent,z at least, the testatrix would have died intestate, a thing which, clearly, she did not desire. _

Where a will is subject to either of two constructions, one of which will give effect to it and the other render it void, .then such construction is to be given as will prevent intestacy, if that result can be obtained by a reasonable and unstrained interpretation. (Schult v. Moll, 132 N. Y. 122; Weeks v. Cornwell, 104 id. 325 ; Clark v. Cammann, 160 id. 315; Jones v. Hand, 78 App. Div. 56; affd., 175 N. Y. 519.)

It is also a well-recognized rule that an absolute gift is not cut down or limited by subsequent language used, unless the intent to do so appears in -as clear and unmistakable language as that which expresses the absolute gift. (Banzer v. Banzer, 156 N. Y. 429; Goodwin v. Coddington, 154 id. 283; Benson v. Corbin, 145 id. 351; Washbon v. Cope, 144 id. 287; Byrnes v. Stilwell, 103 id. 453.)

In Banzer v. Banzer (supra), Judge Martin, calling attention to this rule, said: “ Where an estate is given in one part of a will in clear and decisive terms, it cannot be taken away or cut down by raising a doubt as to the meaning or application of a subsequent clause, nor by any subsequent words which are not as clear and decisive as the words giving the estate,” and he cited with approval Goodwin v. Coddington (supra), where the court said: “ Whenever the will begins with an absolute gift, in order to cut it down the latter 'part of the will must show as clear an intention in that direction as the prior part does to make it,” and Clarke v. Leupp (88 N. Y. 228), where it was said that it was “ settled by a long succession of well-considered cases 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 testatrix, as already indicated, gave a one-fourth interest in the real estate in question to her brother John, and gave it in such a way that her intent could not be misunderstood, and it is difficult to tell what she intended to accomplish by inserting the following words, “I hereby direct that the share due my brother John B. Mee be invested by my executors for his benefit during his natural life and for the benefit of his wife and his issue after his death,” and the difficulty is increased when the whole will is considered. The executors could not sell the real estate because there is no power of -sale anywhere to be found in the will. Therefore, she must have had in mind property • other than real estate, because unless, there was [lower of sale contained in the will the executors could not sell, arid if they could not sell, of course they could not', invest the proceeds.

I am of the opinion, therefore, that the plaintiff had no title to-the premises in question and for that reason the judgment appealed from should be reversed and, inasmuch as the facts are not disputed,, the complaint should be dismissed upon the merits, with costs in this court and in the court below.

. Van Brunt, P.J., and Laughlin, J., concurred ; Patterson, J.,, dissented. 1

Ingraham, J. (concurring):

I do not think that it was the intention of the testatrix that .thb real estate that she had devised to her brother should be included in, the share that she directed her executors to invest for his benefit. Just what the testatrix intended is not at all clear. There is nothing to show that she intended to give to her brother, John - B. Mee,, an estate for life in her real property, with remainder over to his wife and issue. There is no evidence as to how much, if any, personal property the testatrix had when she died. She evidently had some idea of creating a trust-of .some kind in favor of her brother,, and the words used would be proper if applied to personal property, but they are most .inappropriate if applied to real estate,, especially where no power of sale is given to the executors. This conclusion, I think, is justified by the case of Banzer v. Banzer (156 N. Y. 429). See, also, Goodwin v. Coddington (154 N. Y. 283), where Judge O’Brien says : Whenever the will begins with an. absolute gift, in order to cut it down, the latter part of the will must show as clear an intention in that direction as the prior part does to make it.”

: I agree, therefore, that the judgment be reversed and the complaint dismissed.

Judgment reversed and complaint dismissed on the'merits, with costs in this court and in the court below.  