
    Sarah Wortman et al., Resp’ts, v Mary A. Robinson, Appl’t; the Bowery Savings Bank and Charles E. H. Robinson, etc., as Executor Def'ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1887.)
    
    1 Will—Construction.
    The testator by his will devised and bequeathed to his wife all his estate, real and personal, of which he should die seized or possessed, and wheresoever situate, “ or so much thereof as she may use during her lifetime." He also made an executory devise to the plaintiffs of the residue of the estate remaining unused at the death of the wife. Held, that the gift over was good. That the intention of the testator was to give to his wife so much of his estate as she desired to use during her life, and to give the unused portion to the plaintiffs. That it was beyond the power of the wife to assign the portion of the estate undisposed of at her death.
    3 Pleading—Demurrer—Sumtciency ot complaint.
    The complaint alleged the death of the testator leaving a will, which was set forth, that at the time of his death he had upon deposit in the savings bank, in the name of himself and wife, $3,000, of which he was sole owner. That the bank-book went into the hands of his executor. That afterward the widow died, and that the defendant, Mary A. Robinson, claimed the money then remaining in bank under an assignment. On demurrer, Held, good, that the averment was that the fund belonged to the testator, notwithstanding the form and mode of deposit, and passed to the beneficiaries under his will.
    Appeal from an interlocutory judgment overruling the demurrer to the amended complaint.
    
      Harrison S. Moore, for resp’ts; John W. Fiske, for appl’t.
   Dykman, J.

The material facts arrayed in the complaint in this action are these: Joseph Robinson died in February, 1884, leaving a last will and testamentj which forms a component part of the complaint, and which will receive more attention later on.

At the time of the death of the testator he had upon deposit in the savings bank in the name of Joseph and Harriet Robinson the sum of $3,000, of which he was the sole owner, and the bank book issued by the savings bank to the testator was found with other bank books and property of the testator and went into the possession of his executor.

Harriet Robinson died in May, 1884, and the money then remained in the bank, and Mary A. Robinson claims the same under an assignment from Harriet Robinson, which the plaintiff’s allege was procured by fraud, force and undue influence.

The action is in equity to obtain a judgment declaring the assignment void, and permitting a recovery against Mary A. Robinson for $600 of the money which she ha.^ drawn from the bank and against the bank for the balance.

The defendant's interposed a demurrer to the complaint which was overruled by the trial court and we now have an appeal from the judgment and the order directing the same.

The allegation of the complaint respecting the money in ■question is that the testator at the time of his death had on deposit in the savings bank in the name of Joseph and Harriet Robinson the sum of about $3,000, of which he was the sole owner, and upon this assumption of the truth of this averment, the fund belonged to the testator not-notwithstanding the form and mode of deposit and passed to the beneficiaries under his will.

No effect can, therefore, be afforded to the assignment of Harriet Robinson for she' had nothing to assign under this view of the complaint.

It will become necessary, therefore, to ascertain the direction given to the money by the will of the testator, and this is the controlling clause: “Second. I devise and bequeath unto my beloved wife, Harriet Robinson, all my estate, real and personal, of which I may die seized or possessed, and wheresoever situate or so much thereof as she may use during her lifetime.”

The third clause creates an executory devise to the plaintiff of the residue of the estate remaining unused at the death of the wife.

The executory devise is dependent upon the failure of the first taker to execute the absolute beneficial power of disposition which was vested in her by the second clause, and the invalidity of such limitation is claimed by the defendants upon the authority of Jackson v Bull (10 Johns.. 19), Van Horne v. Campbell (100 N. Y., 287), and similar cases of the same kind.

Under these authorities it is claimed that the gift over is absolutely void, independent of the question respecting the exercise of the power of disposition, but we cannot co-_ incide with that view.

The language of the will is quite peculiar, and does not give all the estate, but only so much thereof as the wife may use during her fife, and the residue unused at her death is given to the plaintiff.

The intention of the testator is thus plainly evinced to give his wife so much of his estate as she desires to use during her fife, and give the unused, portion to the plaintiffs, and our conclusion is that such testamentary intention may be perpetuated even at common law, independently of the question of the effect of the provisions of our Revised Statutes affecting the question.

Under this view it was beyond the power of the wife to assign to the appellant the undisposed portion of this fund and the complaint states a good cause of action in favor of the plaintiffs.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  