Weber v. Lester

Judgment affirmed on opinion of Daniels, J., at special term.

(dissenting.) Christiana Parthing made her will in June, 1871. She died in September, 1881. The will was admitted to probate. In 1888 the 'plaintiff brought an action for the construction of the will. The «ose was tried at special term in July, 1889. The decision was in accordance with the respondent’s contention, and the defendants moved for a new trial under section 1001 of the Code of Civil Procedure. The provisions of the will in controversy are: “Second. I give and devise to my nephew, John If. Lester, for and during his natural life, but no longer, twenty (20) acres of land situate, lying, and being in the town of West Seneca, and the south-west corner of Abbott road and Wells road, so-called, to be divided and set off to him, as soon after my death as the same can be done, in as nearly the form of a square as may be, or such other twenty (20) acres of any lands of which I may die seised as may be agreed upon by and between my said nephew and the executors of this, my last will and testament; and I hereby will and direct that said executors shall make and execute, at the expense of my estate, and deliver to said John IT. Lester, a proper and sufficient instrument in writing, under their hands and seals, by them duly acknowledged so as to entitle the same to be recorded, in and by which they shall designate and describe by metes and bounds the twenty (20) acres of land as set off and allotted to said John IT. Lester. In case said John IT. Lester shall die before I do, leaving no lawful issue or descendant him surviving, then and in such case I will and direct the said twenty (20) acres of land which he will take, if living, at the time of my death under and by. virtue hereof, shall be, and be considered, a part of my residuary estate, and shall be disposed of and pass as such under and by virtue of the fourth clause of this, my last will and testament. In case said John IT. Lester survives me, and dies without lawful issue, him surviving, then and in such case I will and direct that said twenty acres of land upon his death shall be, and be considered, a part of my residuary estate, and as such shall be disposed of and pass as such,under and by virtue of the fourth clause of this, my last will and testament. In case said John IT. Lester shall die leaving lawful issue, descendant or descendants, him surviving, then and in such case I give and devise said twenty acres of land to his lawful issue, descendant or descendants, equally, if there be more than one, share and share alike; but, if there be but one, he or she shall have and take the whole of said twenty acres of land.” John B. Weber and William W. Lawson were appointed executors of the will. Lawson died in January, 1888, leaving Weber the sole executor. The 20 acres on the Abbott road were sold on the foreclosure of a mortgage about two years *261before the death of the testatrix, but she left other real estate. The question here is whether Lester can obtain the 20 acres out of the other lands owned by the testatrix at the time of her death.

'The rule is familiar that where, upon examination of a will as a whole, the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt or incorrect modes of expression, the court may, and it is its duty to, subordinate its language to the intention. It may reject words and limitations; supply or transpose them to get at the correct meaning. Phillips v. Davies, 92 N. Y. 199; Wager v. Wager, 96 N. Y. 164. The testatrix, at the time of making her will, owned considerable real estate and personal property, all of which she disposed of by will. It is obvious that she intended to give Lester the use of 20 acres of land during his life-time. Her primary purpose was to devise to him the 20 acres on the Abbott road, but she authorized an equal amount to be agreed upon by her executors and him out of other lands of which she might die seised. There is no room for claim that the testatrix intended that Lester, in any event, should have the use of 40 acres. Every clause in the will limits the amount to 20. Under such circumstances, if, for any reason, the Abbott road land was not available, it was the express intention of the testatrix to substitute another 20 acres in its place. It is entirely immaterial whether, at the time of her death, she owned the Abbott road land or not. Power was given, in the way directed, to agree upon another 20 acres, which would involve an abandonment of the first. If she did not own the Abbott road land, then her purpose was to devise another 20 acres out of the lands of which she died seised. If he cannot insist upon an allotment of another 20 acres, then he gets nothing. It was obviously not her intention that, in any contingency, he should lose the use of 20 acres of land during his life-time. The suggestion of the special term that the executors could not be compelled to agree with Lester as to another 20 acres must depend upon the construction of the will. If the use of 20 acres was devised by the testatrix, the court has inherent power to direct a conveyance. Williams v. Williams, 8 N. Y. 528; Owens v. Society, 14 N. Y. 380-408. The purpose of the testatrix cannot be defeated by a refusal on the part of the executor to agree with Lester as to the particular 20 acres which should be set off or assigned to him. If necessary, the court will compel him to agree. If not, it could adjudge an allotment without his intervention, and against his protest, either of the land or its proceeds in event of a sale. It is the duty of the court to give full effect to the intent of the testatrix. The respondent’s contention, and the decision at special term would utterly defeat such intention. The decision at special term should be set aside, and a decree entered in accordance with the views stated.