Floyd v. Caro

This judgment should be affirmed. The reasons why it should be affirmed, are set forth so concisely in the points submitted by the counsel for the respondent, that to a great extent it would suffice to repeat what‘he has said and refer to the authorities he cites. But he has not considered all the objections relied upon by the appellant, and as they will have to be passed upon, I will state my conclusions, generally, on the appeal, with the cases that warrant them, as follows:

1. The testator’s language in the introductory part of the will, that he was desirous of making a suitable and proper disposition of such worldly estate as he might leave ; the existence, with the specific devises, of a general residuary clause embracing all the rest, residue and remainder of his estate of every nature and description, not therein and thereby,—that is, by the will,—otherwise disposed of; and the provision in this residuary clause, that the whole income of the residue of his estate, which included the property in question, was to be paid to his wife during her life, and upon her death, the residuary estate was to go to such of his relations by blood or marriage, or the relations of Iris wife, as she might, by her will or other instrument, appoint, in such shares or portions, and on such conditions and limitations, as she might direct; show that his intention was to dispose of the whole of his property by that instrument (Youngs v. Youngs, 45 N. Y. 257, and Youngs’ will, in the' printed case, submitted on the argument).

2. The special devises, after the death of his wife, of the property in Greenwich street to Laura F. Carow, and of that in Pearl street, to Sarah E. Saunderson, were to each respectively during their lives, with a contingent' remainder to their issue, each being, at the time of the making of the will; unmarried ; and as the contingency never happened, each having died without issue, and there being no further specific devise of the property, it came under the general residuary clause in the will, which provided for the disposition, as his wife should *545appoint, of property not otherwise disposed of under the will, which was the case in respect to this property. Both devisees, at the malting of the will, were unmarried. There was the possibility that they might not marry, or might not have issue, and. it cannot be assumed that this was an event not contemplated by the testator. A residuary devise of real or personal estate, carries with it all reversionary or contingent interests, which in events contemplated by the testator are not otherwise disposed of (Bowers v. Smith, 10 Paige, 202; Craig v. Craig, 3 Barb. Ch. 101). The event contemplated by the testator here, was that the devisees would have issue, who would take the property absolutely, which was'necessarily coupled with the knowledge, on his part, that it was an event that might not occur; and as it did not, the property comes nnder the residuary clause of the will and is disposed of by it (Doe v. Weatherby, 11 East, 322; Doe v. Scott, 13 M. & S. 300; Doe v. Frederick, 1 B. & Ad. 186; Edgerton v. Massey, 3 Com. B. N. S. 338; Youngs v. Youngs, supra; Craig v. Craig, 3 Barb. Ch. 76; 1 Jarman on Wills, 2d Am. ed. 519).

3. The provision in the sixth, or residuary clause, directing the trustees, on the death of the testator, to transfer to those whom his wife should appoint, the personal property therein provided for, and “ all and singular my real estate not herein and hereby otherwise disposed of,” does not exclude this property from the residuary clause, for it had not been absolutely disposed of by the will—the absolute or final disposition of it being dependent upon a contingency that might not and did not happen, the devisees having died before the wife, at whose death, they were, if then living, to have a life estate in it.

4. This case does not come within the rule applied in Van Kleeck v. Dutch Church of New York (6 Paige, 108 ; 20 Wend. 600), that a residuary devise does not include real estate, which wás, in terms, absolutely devised to others who could not take from incapacity,—as in the case of a corporation incapable of taking by devise,—but descends to the heirs; the reason of the rule being that it appearing by the devise of the property in the will that the testator presumed that he had,' by his will, disposed of the entire fee absolutely, leaving nothing remaining *546for future disposition, no intention could be inferred that it was, in the event of a failure of the devise, to come under the residuary clause (per Grover, J., in Youngs v. Youngs, supra, p. 259), but on the contrary that he did not intend the residuary devise to extend to it (1 Jarman on Wills, 590, 3 Am. ed.). It was conceded, in Van Kleeck v. Reformed Dutch Church, by the chancellor (6 Paige, 108), that the general residuary clause embraces reversionary and contingent interests not fully and completely covered by other parts of the will, and the opinions upon the affirmance of the case in the court of errors show (per Grover, J., in Youngs v. Youngs, supra), that if the disposition made had been upon a contingency that might have left an interest undisposed of, such contingent interest would have passed under the residuary clause, which is the case here. “ If,” says Jabman, “ an estate in fee were devised to a person on the happening of a certain event, it is obvious that the alternative fee depending on the converse event is imdisposed of, and therefore, is an interest on which the residuary clause will operate ” (1 Jarman on Wills, 519, 2d Am. ed.).

5. The appellant concedes the law to be, that where there is a distinct limited or contingent devise, couched in such terms that the testator could not but have had in his mind the possibility of its failure, and there is a sufficient residuary clause, the residuary devisee would take the reversion or remainder. The devise here, of this particular real estate, was to each devisee, “ during her life, and on her death to her issue, then her surviving, and the issue of such of them as may then have departed this life, the issue of any such deceased child taking per stirpes, and not per capita, in fee simple absolute and as the devisees, at the time of the making of the will, had no issue, and were unmarried, which was known to the testator, who designates them by their maiden names, one of them living in his family, and the other the niece of his wife, the testator must have had iu his mind, the possibility of the failure of issue, their having issue being one of those uncertain future events, of which any ordinary mind would take cognizance; and as there was, with this contingent special devise, a general residuary clause, the two are entirely consistent with each other; *547the intention of the testator being, as the language of the will shows, to dispose of the whole of his estate.

6. The fact that the devisees were not to take this property until the death of the testator’s wife, and that, on the happening of that event, the residuary estate, except what was then otherwise disposed of under the will, was to go to the person or persons whom she should appoint by will, does not bring this case, as the appellant contends, within the rule, that where a part of the residue itself fails, that part does not go to augment the remainder of the residue, but is undisposed of, and goes to the next of kin (Skrymsher v. Northcote, 1 Swanst. 566). This rule, which has been applied in this state, in Kerr v. Dougherty (79 N. Y. 346), and Beekman v. Bonsor (23 N. Y. 312), may be illustrated by the case from which it was derived,—Creswell v. Cheslyn (2 Eden, 123),—where the testator gave his residuary estate to his three daughters equally, as tenants in common, and then, by a codicil, revoked the devise ag to one of the daughters, giving her a pecuniary legacy instead; and, the legacy having lapsed, by her death before that of the testator, it was held that the legacy did not go to the other two residuary legatees, but, being undisposed of by the will, went to her next of kin; and in Bhrymsher v. Korthcote, above cited, which was founded upon this case of Greswell v. Gheslyn, the testator declared that the moiety of the residue, the income of which was given to his daughter for life, should, if she died without issue, be divided into two parts, which lie gave in equal proportions to a son and another daughter, and afterwards revoked the. part given to the other daughter, without making any other disposition of it; in respect to which, it was held that he died intestate. In these cases, the testator took a certain part from the residue, and making, in one case, another disposition of it, and in the other case, no disposition of it, it was held that it could not go back to augment the residue, as that was evidently not the testator’s intention; and hence, the rule that a part of the residue, of which the disposition fails, would not accrue in augmentation of the remaining parts, as a residue of a residue ; that it does not therefore, come under the *548residuary clause, but is undisposed of and goes to the testator’s heirs or next of kin.

But the present is not a case of a devise of a part of the residue, which is subsequently revoked or withdrawn, making another or no disposition of it, or, like the cases in this state, where a devise of a certain or unascertained part of the residue fails, being invalid from uncertainty or other cause, but it was a special devise of a life estate in two distinct pieces of land, with a contingent remainder, which did not take effect, as the contingency by which it might have become an absolute devise in fee never happened, both devisees having died without issue, before the death of the testator’s wife, which left an alternative fee undisposed of, which passes to the residuary legatees under the general rule, that reversionary or contingent interests, not fully or completely covered by other parts of the will, are embraced by and come under the residuary clause. “ Residue,” says Sir Thomas Plumee, thq master of the rolls, in the case last cited, of Skrymsher v. Northcote, “ means all of which no effectual disposition is made by the will, other them the residuary clause; but when the disposition of the residue itself fails, to the extent to which it fails, the will is inoperative.” Where, as in Simons v. Rudall (1 Sim. 138), cited by the appellant, the testator subjects a certain part, in that case, one-fourth of his estate, to the appointment of the survivor of the tenants for life, and then gives the rest and residue of it, after their death, to others, and the survivor does not exercise the power of appointment, the part so subjected does not pass under the residuary clause, because it was expressly excluded; all that was given by the residuary clause being the rest and residue remaining after the part subjected to the power of appointment, which power never having been exercised, there was no disposition of it, and it went necessarily to the heirs or next of kin. But it has need that the testator must have used words clearly limiting the gift of the residue and showing in express terms an intention to exclude from it portions of his estate that fail to pass under previous clauses in the will, in order to take them out of the general rule [King v. Woodhull, 3 Edw. Ch. 82, 84).

*549In the language of the will, in the present case, there is nothing showing, or from which it can be implied, that it was the intention of the testator to exclude this property absolutely from the residue of his estate; that if the devisees should die without issue, it was not to go into the residuary estate.

In the language of Bayley, J., in See v. Weatherby (11 East, 322), “ There must be sometheing in the will, either expressed, or necessarily to be implied, showing an intention of the. testator to exclude the reversion, in order to prevent the general words of the residuary clause from passing it.” In the language of Lord Elleuborough, in the same case, “ The operation of a residuary clause carries every real interest of every kind whatsoever, whether known or unknown to the testator, unless it be manifestly excluded.” “ I take the general rule of construction to be,” says Lord Tenterden, in Doe v. Fossick (1 Barn. & Ad. 186), “ that all the testator has, which is not ‘otherwise disposed of, passes under the residuary clause, unless there appears, from other parts of the will, a clear and manifest intention, that something shall not pass.” What is relied upon as showing such intention in this case is, that by the sixth, or residuary clause, the net income of the whole of the residuary estate is to be paid to the testator’s wife, during her life; and that, upon her death, it is, including all his real estate not otherwise disposed of by the will, to be conveyed by the residuary legatees and trustees, as she shall appoint ; and that, in the next, or seventh clause, he gives upon the death of his wife, a life estate in these two pieces of land, with a contingent remainder; thereby,' as it is argued, excluding it from the residuary estate which is to be conveyed, as his wife should appoint. But he does not exclude it. He left it, with other property, covered by like devises, to remain with the bulk and residue of his estate, during his wife’s life, to be separated only in the event of the devise taking effect, upon her death, by the devisees being then in being, or having issue. As they died, however, without issue, it has never been, and could not be, under the will, separated from a residue, so as to leave what is called a residue of a residue. It remained exactly as the testator left it, forming a part of his residuary *550estate, the contingency not having occurred, which would have taken it out of the residuary estate, and made another disposition of it. It remained a contingent interest, not provided for in the will otherwise than by the residuary clause, and it does not follow, because he provided for the conveyance, by the residuary legatee, upon the death of his wife, of all his real estate, not otherwise disposed of by him, that he intended to exclude this contingent interest from the operation of the residuary clause, if the contingency should not happen. . In Doe v. Weatherby, supra, it was held that it was not a sufficient reason for holding that a testator did not intend to pass a contingent interest or reversion, by the general words of the residuary clause, because he subjected the rest of his real estate not disposed of to certain life annuities to one of which this reversion would not attach.

7. There was no error in excluding evidence that the testator had other real estate than that devised by the seventh clause, as .that fact, if it had .been shown, could have had no effect upon the construction of the will.

It seems hardly necessary to add anything to the exhaustive statement of conclusions made by the learned chief justice in his opinion, but it may not be improper for me to add one or two suggestions upon what seems to me to be the only question of difficulty involved in this case.

The rule that the residue of a residue is not increased or augmented in consequence of the failure of a devise of the other part or parts of the original residue, which the testator has expressed an intention to otherwise dispose of, seems to be reasonably well settled, both by principle and authority ; and, if the premises in question' are to be deemed as taken out of the residue by the seventh clause of the will, then they could never, under any circumstances, become subject to the provisions of the residuary clause.

The fact that it is evident that the testator did not intend to die intestate, as to any part of his estate, the fact that it could not be determined, until the death of the wife, whether or not any of the real estate mentioned in the seventh clause *551of the will was or was not disposed of by the will, and the fact that the testator knew that it could not be so determined, seem to indicate a very plain intent upon the part of the testator that the question as to what real estate was disposed of by the will was to depend upon the fact as to who could take under the seventh clause of the will at the death of his wife.

He seems to have intended that his wife might, by will, dispose of all the estate which did not pass by the will, and whether the real estate mentioned in the seventh clause of the will did or did not pass under the will, could only be determined upon the death of the wife, and in view of this fact he gives his wife the right by will to designate to whom all his estate should go, which did not pass to some designated party under the will.

It being, therefore, the intention of the testator that what was otherwise disposed of by the will' was to be determined by the condition of affairs at the time of the death of his wife, there was no intent to take the real estate mentioned in the seventh clause out of the residue, unless there were some persons in being to take at the time of the death of the wife, and the rule hereinbefore stated does not apply.

For the above reason, together with those stated by the learned chief justice, I think that the judgment should be affirmed.

Judgment affirmed.*