
    Isaac Greyston, as Adm’r, etc., of Francis Connors, dec’d, et al., Resp’ts, v. James J. Clark, as Ex’r of Mary Connors, dec’d; Catharine McElrone et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June, 1886.)
    
    1. Will—Construction of—Action for—Jurisdiction of court—Personal PROPERTY UN ADMINISTERED.
    Where an action was brought by the administrator with the will annexed to obtain a construction of the will of F. 0., and it appeared that one McE., who was a party to the action, had received personal property from the widow of the testator, which once belonged to said testator and which personal property was not disposed of by the widow for her support or maintainance. McE. maintained her right to appeal from the construction of the will claiming if the widow had no right to dispose of said property but for her support and maintainance she, McE, was in danger of being called to account for it. Objection was made that the court had no jurisdiction to construe said will, because there was no personal'estate which was not fully administered before the bringing of the action and that there was no trust relating to estate owned by ihe testator in his lifetime.^ Held, that in one aspect of the case and upon one construction of the will there was personal property unadministered and in the hands of a third party, which it might be the duty of the administrator to collect and and distribute according to the provisions of the will. That in such an event it is proper to bring an action for the construction of a will in order to advise the executor or administrator what disposition to make of the personal estate and jurisdiction having been acquired for that purpose it will remain for all other purposes.
    2. Same—Jurisdiction does not depend on the way toe question is DECIDED.
    The jurisdiction does not depend upon which way the question may he decided, but upon the existence of the question, and exists even though it were decided there was no personal property upon which to administrate.
    3. Same—Limitation op estate—1 Rev. Stat., 725, §§ 32, 33.
    The rule adopted by the common law, and which governed in the case of Van Home v. Campbell (100 N. Y., 287), which held that a provi ion in a will disposing of real property to A, in such terms as to convey a fee and with power to dispose of it in his lifetime was inconsistent with a further provision that in case A. did not dispose of it during his lifetime that then the estate should go to B. was void as to theTimitation over; wa, abrogated by 1 Rev. Stat., 725, §§ 32, 38.
    4. Same—What is ^ expectant estate.
    Such a possibility of enjoying an estate as rests with the individual entitled to enjoy it only on failure of the preceding owner to dispose of it, is’an expectant estate and is saved by 1 Rev. Stat., 725, § 32.
    5. Same—Effect of such limitation.
    The fact that the contingency upon which the estate is limited to take effect rests in the will or volition of the first taker does not alter the character of the contingency, though it may make it more remote.
    6. Same—Construction of power of disposing of an estate given to widow.
    Where a will provided first, “ after all my lawful debts are paid and discharged, I give, devise and bequeath all my real and personal property of every name, nature and description, and wherever situate, to my wife, Mary Connors, absolutely to have and to hold the same for her own use and benefit, and with full power and authority to sell or mortgage as she thinks proper. Second, it is my will that on the death of my said wife, whatever property that she may die seized of that belonging to me and remaining in her by virtue of this will shall be divided between certain relations named in the will share and share alike.” Held, that Mrs. Connors took a fee, but that it was subject to the condition that the estate should be disposed of by her during her lifetime,for of such as was not disposed of thus, the will gives to the testator’s brother and sisters.
    7. Same—Not restricted to her support and maintainance only.
    The estate given to the wife was of such a nature that she could dispose of it all during her lifetime that she should deem to be for her use and benefit, and she is not restricted to a disposition for her support and maintenance only; but she could not dispose of any portion of the husband's estate by her will
    Appeal from a judgment rendered at the Albany circuit, in favor of plaintiff, construing the will of Francis Connors.
    Francis Connors died in 1883, owning real estate in the city of Albany. He made a will less than a month before his death which was duly probated; it provided:
    
      “First. After all my lawful debts are paid and discharged I give, devise and bequeath all my real and personal property of every name, nature and description and wherever situated to my wife Mary Connors, absolutely to have and to hold the same for her own uge and benefit forever, and with full power and authority to sell or mortgage as she thinks proper.”
    
      Second. It is my will that on the death of my said wife whatever property that she may die seized of that belonged to me and remains in her by virtue of this will, shall be divided ” between five of the testators relatives (a brother, three sisters and a nephew) named in the will, share and share alike. _ He appointed his wife sole executrix. Mary Connors, his widow, died early in 1884, leaving a last will, which was admitted to probate. This will disposed of her real and personal property, and appointed James J. Clark, one of the defendants herein, executor thereof.
    The executor of Mary Connors claimed that all the property of which Mary Connors’ husband died seized became her absolute property under her husband’s will.
    This action was brought by the administrator, with will annexed of Francis Connors, to obtain a judicial construction of said will, the claim made by him being that she took a life estate merely.
    
      Isaac Lawson, for appl’t McElrone; Eugene Burlingame, for appl’t Clark, ex’r; J. H. Chite, for resp’t.
   Peckham, J.

This action is brought to obtain a construction of the will of one Francis Connors, deceased. It is objected that the court has no jurisdiction to construe the will, because there is no personal estate wdrich was not fully administered before the bringing of the action, and there is no trust relating to any real estate owned by the testator in his life-time.

It appears, however, by the admission of the counsel for McElrone, who appeals from the judgment' herein and seeks to have it reversed, that his client received personal property from the widow of the testator, which .property once belonged to him, and which personal property was not disposed of by the widow for her support or maintenance. And the counsel maintains his right to appeal .and to ask for a reversal of the judgment because his client, having received this personal property from the widow in her life-time, stands in danger of being called to account for it if the widow had no right to dispose of it, but for her support or maintenance.

This shows that in one aspect of the case, and upon one construction of the will, there is personal property unadministered and in the hands of a third party, which it might be the duty of the administrator of the estate of Francis Connors to collect and pay over as trustee to the person designated in the will. In such event it is proper to bring an action for the construction of the will of an individual, in order to advise the executor or administrator what disposition to make of the personal estate, and jurisdiction being acquired for that purpose it remains for all others. Wager v. Wager, 89 N. Y., 161, and cases cited.

The jurisdiction does not depend upon which' way the question may be decided, but upon the existence of the question, and hence it exists, even though it should be be decided that the gift of the personal property of Catharine McElrone, by the widow in her life-time, was valid, and that thus in reality there was no personal property upon which to administer. By the decision at special term the right of the widow to dispose of the property coming to her from her husband, for any purpose other than for her support and maintenance, was denied. We think, therefore, that the court has jurisdiction over the subject-matter of the action, which must be decided upon the construction of the will of Francis Connors. •

The court of appeals has held that in regard to a will which took effect prior to the adoption of the Revised Statutes, a provision in such will disposing of real property to A, in such terms as to convey a fee, and with power to dispose of it in his lifetime, was inconsistent with a further provision, that in case A did not dispose of it during his life, that then the estate should go to B, and it was held that the limitation over was void. See Van Horne v. Campbell, 100 N. Y., 287.

The rule adopted by the common law was the simple and arbitrary one of holding it illegal to allow a remainder or other legal estate to be limited after a fee. Van Horne v. Campbell, (supra), opinion of Andrews, J., at page 291. Such being the rule adopted, with or without reason, nothing need be said about its propriety. But when it was subsequently attempted to evade or avoid, to some extent, such hard and fast rule, for the purpose of supporting the intention of a testator, as evidenced in his last will, the courts, while establishing the validity of a fee limited upon a fee, refused even then to admit the validity of what may be called the remainder fee, if the devisee of the prior fee had been especially invested with the power of disposition during his lifetime, and the remainder fee was limited to take effect only upon the failure of the prior owner to exercise his power. This result was brought about by reason of what the courts called the repugnancy of the limitation over as against the prior disposition of the fee and the power of disposition connected therewith. It is, of course, true that any condition is repugnant to an absolute and unqualified fee, but the plain answer in such a case is that it is not an absolute and unqualified fee that is created, but a qualified and conditional one, and why such a limitation over, founded upon such a condition, should not be sustained, is very illogically stated, as it seems to me, by' saying that the limitation over is repugnant to a fee. It is repugnant to a fee, but as a fee was not absolutely and unqualifiedly given, but only a conditional one, as therein stated, no repugnancy existed, for no-such fee existed as to create the repugnancy, provided due effect were given to all the words used by the testator in the creation of the estate.

Such, nevertheless, was the English rule which was adopted by our courts, as is shown in Van Horne’s case, supra, and the plain intention of the testator was prevented from taking effect, because it violated a wholly artificial and technical rule, founded, as I think, neither upon any public policy or sound reasoning. The modern idea is much stronger than the past in the direction of carrying out the plain intention of the testator if it can be done without violating some plain rule of law or an express statute. Before the adoption of the Revised Statutes, such a rule existed as against a will like the one before the court, and unless those statutes have altered the rule, the limitation over must, in this case, be held void. The question then is, has the rule been abrogated by the Revised Statutes? I think it has. See 1 R. S., 725, §§ 32, 33; 3 R. S. (7th ed.), 2178, same sections.

The thirty-second section provides for not defeating or barring expectant estates, and the next section provides that the preceding one “ shall not be construed to prevent an expectant estate from being defeated in any manner or by any act or means which the party creating such estate shall in the creation thereof have provided for or authorized, nor shall an expectant estate thus hable to be defeated be on that ground adjudged void in its creation.”

Can such a possibility of enjoying an estate, as rests with the individual entitled to it only on the failure of the precedent owner to dispose of it, be called an expectant estate, and is it saved by the sections above quoted? Such an interest in property answers the definition given of an expectant estate by the Revised Statutes.

It is a future estate limited to commence in possession at á future day on the determination by lapse of time or otherwise of a precedent estate created at the same time. It is also a contingent future estate, for the event upon which it is limited to take effect remains uncertain, and may never occur. It seems to me that it falls properly within these definitions, although the contingency upon which it is limited to take effect rests in the will or volition of the first taker. The only effect of such a limitation is, I think, to render the happening of the contingency more remote, but still not to alter its character as a contingency upon the happening of which the estate is to vest. And I am the more inclined to take this view of the case as the result is to bring us a step nearer towards carrying out the intention of the testator, while it does not run counter to a statute or any rule of law or public policy. Being then an expectant estate, the thirty-third section of the statute saves such an estate from being adjudged void in its creation, because of a liability to be defeated by an act or means which the party creating the estate provided for or authorized in the creation thereof. Here, it seems to me, is just such a case.

Before the adoption of this statute this expectant estate, called such by way of description, would have been held void in its creation by reason of its liability to be defeated by an act or means provided for or authorized by the party creating the estate, and in the creation thereof, viz., by the act of the first taker disposing of the estate during his lifetime, this act being authorized and provided for by the party (the testator) creating the estate and in the very instrument (the will) creating the same.

It is meant to apply to that interest in an estate which, before the adoption of the Revised Statutes, would have been adjudged void in its creation; if it would have been adjudged void in its creation, then, as the counsel for the defendants contend, the statute would not apply, for it cannot be. said of it that it was an expectant estate.

This construction of the statute would render it meaningless and absurd. The plain meaning is, that such an interest in property as would be termed an expectant estate, if it could otherwise be legally created, shall not be adjudged impossible of creation, because the creator of the estate in its creation provided for or authorized an act or means to defeat it. Having reached the conclusion that the Revised Statutes alter the rule as stated in Van Horne case (supra), the only remaining question is whether the estate given by the testator to his wife was of such a nature that she could dispose of it ah during her fife-time for any purpose she should judge to be for her use or benefit, or was she restricted to a disposition for her support and maintenance only, and did all of the estate of Francis Connors, not thus used, belong to his brother and sisters, as spoken of in his will?

This question is important to the defendant McElrone, as she admits the receipt of property from Mrs. Connors in her life-time, once belonging to the estate of Francis Connors, and not given her for the support or maintenance of Mrs. Connors.

Under the authority of Campbell v. Beaumont (91 N. Y., 464), I think Mrs. Connors took a fee, but it was subject to the condition that the estate should be disposed of by her during her life-time, for of such as was not disposed of, this will gives it to testator’s brother and sisters. In Campbell v. Beaumont (supra), the language there used to create a limitation over as claimed, was held not to accomplish such purpose, the court saying, “it was insufficient to hmit the wife’s estate or interest, and seems rather to have been intended to express the natural anticipations of the testator that his property, or some of it, would, as matter of course, go from the mother to the child and his acquiescence in such devolutions,” etc.

The child mentioned was the son of the mother but not of the testator. Here the beneficiaries are the brother and sisters of the testator, and language which in the one case might be regarded as acquiescence in a natural devolution of property from mother to son, may, very properly in this case, be held as a disposition thereof by the testator, after the wife has finished her use for it with her life. Thus distinguishing the two cases, I think that within the reasoning of the case of Terry v. Wiggins (47 N. Y., 512) the will in question, taking all its language, renders it necessary that the disposition of the property by the widow should be during her life-time and not by will. See, also, Flanagan v. Flanagan, 8 Abb. N. C., 413.

But I regard the construction of the court at special term as too narrow in holding that, the widow had only power to dispose of the estate to such an extent as was necessary for her support and maintenance. See Flanagan v. Flanagan, supra. The language used in the will, as held in Campbell v. Beaumont (supra), is such as to create a greater interest in the estate than simply for her support and maintenance. It would give an unconditional and unqualified fee, were it not for the use of subsequent language, which, in last above cáse was held not sufficient to change such estate in the case of a step-son of testator, and which, we think, may properly be held to change it in the case of a brother and sister, to the extent of fimiting the disposition of the estate during the life-time of the widow, and not by will. But during such life-time, we think the widow could dispose of the property, although it were not for her maintenance and support.

The court in the Van Horne case [supra) treats the question as not yet decided in this state, as to whether the Revised Statutes have altered the common law in regard to the matters herein discussed and we, therefore, assume that such question is open for discussion in this court, and we have accordingly discussed and decided it.

The judgment oí the special. term should be modified as to the provisions declaring the right of the widow to dispose of the property in her life-time, but only for her maintenance and support, and it should be declared she had an unlimited power to dispose of it during her lifetime, but not by will. In other respects the judgment should be affirmed. Costs of all parties out of the estate.

Bocees, P. J., and Landon, J., concurred.

Judgment affirmed as modified; to be settled by Peck-ham, J.  