
    Catharine Benjamin, App’lt, v. Luther Welch, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 8, 1893.)
    
    Will—Construction op devise.
    In an action of ejectment, the plaintiff sought to recover eight acres of land as devised under her father’s will. The will devised to testator’s wife the use for life of sixty acres of land lying on the east side of the road, and “ 34 acres in the N. ID. corner of 104 acres on which I now reside, said 34 acres bounded on the east by the road running through said 104 acres,” and after his wife’s death he devised to his daughter Sary the said sixty acres, and to his daughter Catharine, the plaintiff, the said twenty-four acres, and to his son Luther, the defendant, all the rest of his real estate. The 104 acres, called the home farm, was in a compact body, the twenty-four acres, with the eight acres in question, being separated from the rest by the roads, although the description of the roads in the will was not quite accurate. The homestead was situated on the eight acres, no other dwelling house being’ on the home farm, and in such home defendant lived. Meld, that the intention of the testator was to give plaintiff only twenty-four acres in the northeast corner of the home farm.
    Appeal from a judgment entered in Tioga county on May 26, 1893, upon a verdict directed by the court in favor of the defendant at the Tioga circuit; also from an order denying a motion on the minutes for a new trial.
    
      Clark & Tuthill, for app’lt; S. Jay Chart, for resp’t.
   Merwin, J.

This is an action of ejectment. The plaintiff seeks to recover the possession of about eight acres of land in the town of Bichford, Tioga county, as devisee under the last will and testament of her father, Thomas Welch, deceased. The defendant also claims under the same will. At the close of the trial, the defendant asked the court to direct a verdict in his favor, and the plaintiff asked the court to direct a verdict in her favor. The court denied the motion of the plaintiff, and granted the motion of the defendant and directed a verdict in his favor, dismissing the plaintiff’s complaint. The plaintiff did not ask to go to the jury. So that in effect it was agreed that the court should pass upon whatever disputed questions of fact there were in the case. Dillon v. Cockroft, 90 N. Y., 649.

The controversy in this case relates to the boundaries of the devise to the plaintiff.

The will of Thomas Welch is dated January 8, 1873. In it are the following provisions:

“After the payment of my debts and funeral expenses I give and bequeath to my wife Nancy Welch all my household furniture and all my personal property. I also give and devise to my said wife the use of sixty acres of land lying on the east side of the road, being the same that my son Luther now resides on, to be held during her life.

I also give to my said wife the use of twenty-four acres in the northeast corner of one hundred and four acres on which I now reside, to be held by her during her life, said 24 acres bounded on the east by the road, on the south and west by a road running through said 104 acres.

At the decease of my said wife I give and devise to my daughter Sary Helia Welch the said mentioned sixty acres of land lying on the east side of the road. And I direct that she pay to my daughter Catherine Benjamin, one hundred and twenty dollars in two equal annual payments after my decease, which said $120 I give to my said daughter Catherine Benjamin. I also give and devise to my said daughter Catherine, at the decease of my said wife, the said twenty-four acres.

I give and devise to my son Luther Welch all the rest, residue and remainder of my real estate, subject to the payment to be made by him of the sum of seven hundred dollars, to pay the same on a mortgage now on my land of about that amount, and if not so much as that remains due on the mortgage to pay the residue to my executors to be equally divided among my children.

I have heretofore given to my son Rufus, what land I intended for him to have of my estate.

I will and direct that my daughter Sary Mélia have a home and support (so lpng as she chooses to remain with her mother) on and from the property herein given to her mother and herself.

At the time of making the will, the testator had a wife, Nancy Welch and four children, Luther, Catharine, Sarah Amelia and Rufus. All are named in the will. He owned two farms, upon one of which he then lived. This is called in the will 104 acres, but as the evidence shows it contained about 111 acres. The other farm consisting of about sixty acres, was situated east or southeast of the homestead farm, and was on the opposite side of an highway called Harford Mills road. On this sixty acres was a dwelling-house in which his son Luther then lived. After the will was made and before his father’s death, Luther went to live with his father on the home farm. The father died sometime prior to 1885. The widow, Nancy Welch, died December 20, 1885.

The home farm was in a compact body, and north and west lines were substantially straight and nearly at right angles. The eastern boundary was the highway called the Harford road, and its direction was nearly north and south. The southern boundary was an highway called the Harford Mills road. This intersected the Harford road at nearly right angles at the southeast corner of the farm, and then tending somewhat southerly it proceeded to the southwest corner of the farm. From this road, about eighteen rods westerly from the southeast corner of the farm, there, proceeded across the farm a private road. This ran northwesterly some distance and then turned and ran about north to the north line of the farm. The amount of land enclosed within the two highways, the private road and the northern line of the farm, is about thirty-two acres. The plaintiff, after her mother’s death, entered into and is now in possession of twenty-four acres, the northern part of the thirty-two. The eight acres in controversy is the northern part, and on that is the homestead in which the testator lived. There is no other dwelling house on the home farm.

The plaintiff claims that the whole thirty-two acres belongs to her as being within the description contained in the will. The defendant claims that the plaintiff is only entitled to twenty-four acres in the northeast corner of the farm, and that she now has that and is not entitled to the balance.

If the plaintiff’s contention is right, she gets, not twenty-four acres in the northeast corner of the 104 acres, but about thirty-two acres on the east side of the farm. If the defendant’s contention is right, the twenty-four acres is not bounded on the south by a road running through the 104 acres, but by an imaginary line, parallel to the north line of the lot, and connecting the eastern highway with the private road far enough south from the north line to include twenty-four acres. It may be observed that the private road is not the entire southern boundary of the thirty-two acres, it being partially bounded by the Harford Mill road. In this respect, the language of the will, “ on the south and west by a road running through said 104 acres,” and on which the plaintiff relies, is not entirely accurate.

In regard to conveyances it is said by Chief Judge Huger in Brookman v. Kurzman, 94 N. Y., 276, as follows: “The long established rules with reference to the construction of descriptions contained in conveyances require courts to adopt such an interpretation thereof as shall give effect to the instrument according to the intention of the parties, if that is discoverable from legitimate sources of information. Jackson v. Clark, 7 Johns., 217; Buffalo N. Y. & Erie R. R. Co. v. Stigeler, 61 N. Y., 348. In giving effect to such intention it is also their duty to reject false or mistaken particulars, provided there be enough of the description remaining to enable the land intended to be conveyed to be located. Hathaway v. Power, 6 Hill., 454; Wendell v. People, 8 Wend., 189; Loomis v. Jackson, 19 Johns., 452.” So it is said in B. N. Y. & E. R. R. Co. v. Stigeler, 61 N. Y., 351, that when it appears, from the designation of quantity or other elements of description that the courses and distances from a fixed and determined line were intended to control monuments, then the latter should be disregarded; that the intention of the parties as evidenced by the deed is in all cases to determine the location of the premises.

In the present case the question is what was the intent of the testator, and that is to be derived from the will itself, in the light of such surrounding circumstances as may be properly considered. In such a case the court may reject words @,nd limitations, supply or transpose them, to get at the correct meaning. Phillips v. Davies, 92 N. Y., 204. Did the testator intend to limit the devise to twenty-four acres, or did he intend to devise all easterly of the private road including the homestead ?

The testator had two sons and two daughters. To one of the sons he had previously given what he intended him to have from his landed estate. The other son, the defendant, lived with his family in a dwelling-house on the sixty acre farm. One of the daughters lived with her parents, the other, the plaintiff, as it may be inferred, did not. The testator gives to his wife the use of the sixty acres for her life and then gave the same to his daughter Sarah who lived at home, thus providing her with a home. He also gave to his wife for her life the use of “ twenty-four acres in the northeast corner ” of the home farm, and after her death gave the same to the plaintiff. The balance of the home farm he gave to the defendant.

The latter apparently had need of a dwelling house and he was to have the larger part of the home farm. The provisions for the wife are not in lieu of dower. Is it probable that the testator intended that his son Luther should not have either of the houses on his two farms ? If the testator had intended the plaintiff to have the homestead, would, he not have so stated ? On the contrary he says in precise terms “ twenty-four acres. ” The amount is specific and is uppermost in the mind of the testator, as it is first named. It designates so much out of a larger quantity. It is not the case of a description of land followed "by a statement of the quantity, in regard to which it is said by Judge Spencer in Mann v. Pearson, 2 Johns., 41, that “ the enumeration of quantity, after a description of the subject, is superfluous and immaterial and in any view only matter of description.” It is rather the case of inconsistent descriptions, and in such a case that is to be adopted which will carry out the apparent intention. Harris v. Oakley, 2 N. Y. Supp., 305; 17 St. Rep., 198. The designation of twenty-four acres in the northeast corner is certain and definite, and the southerly line can be readily located within the limit of the highway and the private road. Kellogg v. Vickory, 1 Wend., 406.

In Partridge v. Russell, 18 St. Rep., 687, it is said whenever the location of a premises is doubtful, through uncertain, inconsistent or conflicting terms of description in the deed, the proper location of the premises becomes a question of fact to be determined by the jury on all the evidence. In the present case, whatever question of fact there is has been determined adversely to the plaintiff.

Having in view the surrounding circumstances, it should, I think, be held that the intention of the testator was to give to the plaintiff only twenty-four acres in the northeast corner within the limit of the highway on the east and the private road on the west. The will is capable of a construction to carry out this intent and. it should be so construed, as it has been done by the court below.

If follows that the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., concurs; Martin, J., not voting.  