
    In the Matter of the New York, Lackawanna and Western Railway Company, to acquire Real Estate of Minnie Van Zandt and Others.
    
    
      (Court of Appeals,
    
    
      Filed March 22, 1887.)
    
    Will—Construction—Contingent devise.
    The will in question contained the following clause “ I direct that in case my daughter, Minnie, should die without issue that my real and personal property should be possessed and enjoyed by my husband, Reuben W. and my sister Delia F., during their natural lives, and after their death the real and personal property to be divided equally between my brothers H, J,F,and T, or their representatives, share and share alike; the devise over to my husband,sister and brothers, to depend upon the contingency of my daughter Minnie dying without issue. Minnie was then a child of six years. Held, that Minnie took a base or conditional fee, defeasible by her dying without leaving issue living at the time of her death (I R. S., 724, § 22), that her issue, should she leave any, would take by inheritance from her, but a conveyance by her in her lifetime would be effectual as against them; and that an indefeasible title in fee could be conveyed, and the contingent expectant estate limited to the husband, sister and brothers of the testatrix in the event of Minnie dying without issue, cut off, by their joining with her in a conveyance.
    Appeal from order of general term, supreme court, fourth department, affirming order directing that money awarded Minnie Van Zandt for land condemned, be invested by county treasurer in bonds and mortgages, and that he pay the interest to Minnie for life, and at her death pay the principal to persons entitled under the will of Ellen M. Wisner. Minnie claimed that she should have the principal, under the following clause of her mother's will:
    “ Third. I direct that in case my daughter, Minnie, should die without issue, that my real and personal property should be possessed and enjoyed by my husband, Reuben P. Wonner, and my sister, Delia Fisk, during their natural lives, and after their death the real and personal property to be divided equally between my brothers, Henry 0. Fisk, John M. Fisk, Frederick D. Fisk and Thomas J. Fisk, or their representatives, share and share alike; the devise over to my husband, sister and brothers to depend upon the contingency of my daughter, Minnie, dying without issue.”
    
      M. II. Me Math, for app’lt, Minnie J. Van Zandt; Chas. J. Bissell, for resp’t.
    
      
       Affirming 29 Hun, 613, mem.
      
    
   Rapallo, J.

It may be regarded as a settled rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first-named devisee during the life-time of the testator; and that, if such devisee survives the testator, he takes an absolute fee; that the words of contingency do not create a remainder over to take effect upon the death, at any time, of the first taker, or an executory devise, but are merely substitutionary, and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator. .This construction is uniformly adopted, unless there is some language in the will indicative of a different intention on the part of the testator. The reason assigned for this construction has been that as death is a certain event, and the time only is contingent, the words of contingency in a devise of this description can only b,e satisfied by referring them to a death before some particular period; and no other being mentioned, the time referred to must be presumed to have been the testator’s own death. It is also founded upon the principle that, in construing wills, effect should be given, if possible, to all" the words used by the testator, and that any other construction than the one which has been adopted would in every case reduce the estate of the first-named devisee to an estate for life; for his death at some time is certain, and the words of inheritance attached to the devise to him would in every case be inoperative.

Nevertheless, it has been held that the same rule of construction is to. be applied where the alternative .devise is made to depend upon the death of the first-named devisee “without issue” or “ without children,” etc. This question is thoroughly discussed in the opinion of Andrews, J., in the case of. Vanderzee v. Slingerland (103 N. Y., 47), and the learned judge comes to the conclusion that, although the reason upon which the rule adopted in the first mentioned class of cases was founded does not exist in the second, yet that it is established by precedent. It would be useless now to go through the cases. They are very numerous, and not all reconcilable, and many of them contain special features. It is sufficient for present purposes to refer to a few of the cases.

In Gee v. Mayor, etc., of Manchester (17 Q. B., 737), the testator devised and bequeathed his real and personal estate to be divided equally among his children as follows, viz.: “I will and bequeath to my eldest son, A., one-seventh share of my property, to his heirs, executors, and administrators.” Then followed similar devises and bequests to each of the testator’s six other children, and afterwards a general provision in these words; And, in case any of my sons and daughters die without issue, that their share returns to my sons and daughters equally among them, and in case any of my sons and daughters die, and leaving issue, that they take their deceased parent’s share.”' It was held that the death, referred to was a death in the lifetime of the testator, and that, all his children having survived him, they each took a fee-simple in one-seventh of his realty. It must be observed that, unless that construction was adopted, the words of inheritance attached to the devise to each of the testator’s children must in every event be rejected. It was certain that each of the children would die either with or without issue. Construing the death referred to by the testator as a death at any time, the result would be that upon the death of either of the testator’s sons, for instance, without issue, his share would go to his brothers and sisters, not as his heirs, but as purchasers, by virtue of the limitation over to them. If he died leaving issue, such issue would take, in like manner, not as his heirs, but as purchasers. He would have no estate of inheritance in any event, and could make no disposition of the fee in the realty in-his life-time or by will. The words of the testator purporting to give him an estate in fee would thus be wholly rejected, and his estate, under all circumstances, cut down to a life-estate. It was on these grounds that Lord Campbell, in delivering the judgment of the court, held that the only mode of giving effect to all the words of the testator was by treating the words in the last clause of the will as words of substitution only, in case of a lapse and referring the death there contemplated to a death in the life-time of the testator.

In Clayton v. Lowe (5 Barn. & Aid., 636,) the devise was in the same form as in the case last cited. The estate was given to the testator’s three grandchildren forever. If either of them should die without lawful child or children, the share of .the one so dying was to be divided among the survivors; but, if either should die leaving lawful child or children, such child or children should take the share of the parent. It is obvious that, unless the death referred to was a death in the life-time of the testator, the first-named devisees could in no event take a fee.

Doe v. Sparrow (13 East, 359,) was a case of the same description, with additional significant words expressly referring to the testator’s own death. Woodburne v. Woodburne (23 L. J. Ch., 336), was the same as Gee v. Mayor, etc., of Manchester, and was decided the same way.

The caseso I have referred to rest on principles, and are founded on reasons, which are easily comprehended; but there are other cases in which the words “die without issue” are construed as referring to a death in the life-time of the testator where those principles are inapplicable, and the reasons do not exist, and of such cases Andrews, J., in the case of Vanderzee v. Slingerland, says that they stand more upon authority than upon reason.

It is stated in Jarman on Wills (5th Amer. Ed., 783,) that the general rule is that, where the context is silent, the words referring to the death of the prior legatee in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator. In O’Mahoney v. Burdett (L. R. 7 H. L., 388, 393,) it was held that a bequest to A., and, if She should die unmarried or without children, to B., was an absolute gift to A., defeasible by an executory gift over in the event of A. dying at any time unmarried or without children, and that this construction could only be affected by a context which rendered a different meaning necessary. And in Britton v. Thornton (112 U. S., 526,) it was held that under a devise to one person in fee, and, in case he should die under age and without children, to another in fee, the devise over would take effect upon the death at any time, of the first devisee under age and without children. To the same effect is Edwards v. Edwards (15 Beav., 357). And see Doe v. Webber (1 Barn. & Ald., 713,) and Anderson v. Jackson (16 Johns., 382).

But it cannot be disputed that there are several cases holding that where there is simply a devise to A. in fee, and, in the event of his dying without issue, then to B. the death referred to is a death in the life-time of the testator; and, if A. survives him, he takes an absolute and indefeasible estate in fee. See Home v. Pillans (2 Mylne & K., 15, 19,) and cases cited. Ware v. Watson, 7 De Gex, M. & G., 248. Such appears to be the rule in Pennsylvania, Mickley’s Appeal, (92 Pa. St., 514,) and the same rule has been adopted in this court, Quackenboss v. Kingsland, (102 N. Y., 128), and was recognized in Vanderzee v. Slingerland, (103 N. Y., 47,) before referred to. But in that case the learned judge writing the opinion (Andrews, J.) says that the rule established by the courts applies only when the context of the will is silent, and affords, no indication of intention other than that disclosed by word of absolute gift, followed by a gift over in case of death, or of death without issue; and that, indeed, the tendency is to lay hold of slight circumstances in the will to vary the construction, and give effect to the language according to its natural import; and in the will which the learned judge was then construing he found such indications.

I think that similar indications exist in the will now before us. The testatrix does not charge the legacies upon her daughter, Minnie, personally, but upon the real estate Revised; so they would be borne by whomsoever should become entitled to that real estate. She devises the real estate to her, without words of inheritance. She then directs that, in case she should die without issue, her estate, real and personal, should be possessed and enjoyed by the others named in the will. ■ Her death without issue is a contingent event; but by adopting the construction contended for, and claimed to be established by the authorities, the court would add another contingency not specified by the testatrix; that is, that she die without issue during the lifetime of the testatrix. As if to make her intentions clearer, and to indicate that no other contingency was contemplated than the one which she had expressed, the testatrix adds at the end of the clause: “The devise over to my husband, sister, and brothers to depend upon the contingency of my daughter, Minnie, dying without issue;” this repetition clearly defining the testator’s intention that, in the event of her daughter’s dying without issue, her husband, sister, and brothers should enjoy the property, without reference to any other contingency. The daughter was an infant of about six years of age at the time of the Reath of the testatrix, and it would be a very forced construction of the language of the will to hold that the testatrix had an unexpressed intention that if the child should Rie the next year, or at any other time after the death of the testatrix, the devise over to her husband, sister, and brothers should not take effect.

Our conclusion is that Minnie Van Zandt took, under her mother’s will, a base or conditional fee defeasible by her dying without leaving issue living at the time of her death (1 Rev. St. 724, § 22); that her issue, should she leave any, would take by inheritance from her, but a conveyance by her in her lifetime would be effectual as against them; and that an indefeasible title in fee could be conveyed, and the contingent expectant estate, limited to the husband, sister, and brothers of the testatrix in the event of Minnie dying without issue, cut off, by their joining with her in a conveyance. See Emmons v. Cairns, 3 Barb., 243, 246, et seq.

For these reasons we think the order appealed from should be affirmed.

All concur.  