Vanderzee v. Haswell

• Citation: 8 N.E. 247,103 N.Y. 47
• Parties: VANDERZEE and others v. HASWELL and others.
• Decision Date: 05 October 1886
• Court: New York Court of Appeals

103 N.Y. 47

8 N.E. 247

VANDERZEE and others

v.HASWELL and others.

Court of Appeals of New York.

October 5, 1886.

Appeal from a judgment of the general term, Third department, of the supreme court, affirming a judgment of the Albany special term, construing the provisions of the last will of Harmon Vanderzee, and determining the rights of the parties to the property therein described.

N. C. Moak, for appellants, William E. Haswell and others.

E. Countryman, for respondents, Cornelius Vanderzee and others.

ANDREWS, J.

The sole question presented in this case is whether Cornelius Vanderzee took under the will of his father, HarmonVanderzee, an estate in fee-simple in the homestead farm, or a fee subject to a conditional limitation in favor of the four grandchildren of the testator named in the will, in the event of the death of Cornelius without issue. The testator died in 1840. His son Cornelius entered under the devise, and continued in possession of the farm until his death, in 1876. The plaintiff Cornelius Vanderzee is one of the four grandchildren named in the will, and his right to maintain this action depends upon the nature and quality of the title which the testator's son Cornelius took under the will of his father.

The will is brief, and is a will of real estate exclusively. The testator, in the first clause, directs that his debts and funeral charges shall be first paid out of his estate. The second clause is as follows: ‘All my real estate, as now in my actual possession, being my homestead farm, situate in the county of Albany, I devise to my son Cornelius, subject to the proviso hereinafter contained.’ The third clause directs that his wife, if she survive him, shall have an ample support from and out of the estate devised to Cornelius, during his life. The fourth, fifth, sixth, seventh, and eighth clauses bequeath severally to his three daughters, his son Tunis, and his grandson Harmon Slingerland, money legacies amounting in the aggregate to $1,700. The ninth and tenth clauses are as follows: ‘ Ninth. The legacies above mentioned are to be paid to the legatees by my son Cornelius, in consideration of my devising unto him the aforementioned real estate, to be paid to them, respectively, within two years after my death. Tenth. In conclusion, my will is that if my son Cornelius dies without issue, that then the estate herein devised to him shall go to my grandchildren hereinafter named: Harmon T. Vanderzee, Cornelius T. Vanderzee, sons of my son Tunis; Harmon Slingerland, son of my daughter Elizabeth, deceased; and Harmon Houghtaling, son of my daughter Eve,-share and share alike; and in case my son Cornelius should die before the provisions of this will become an act, the devisees last named shall perform and fulfill all the conditions required of my son Cornelius to the legatees named in this my will.’

The whole question is whether the words, ‘if my son Cornelius dies without issue,’ in the tenth clause, refer to the event of his death before that of the testator, or to a death at any time, whether before or after the testator's death. If the former is the true meaning, the gift over to the grandchildren was substitutionary merely, depending on the contingency of the death of the primary devisee in the life-time of the testator, and designed to prevent a lapse; and, upon that construction, Cornelius having survived the testator, the contingency upon which the grandchildren were to take was gone, and Cornelius took an absolute fee. If, on the other hand, the words refer to a death, at any time, under the circumstances mentioned, then, on the death of the testator, the grandchildren took a contingent interest under the will, by way of executory devise, which, on the death of Cornelius without issue, was converted into a fee in them, thereby displacing and subverting the conditional fee before that time vested in Cornelius. It has been claimed, indeed, that the devise to Cornelius was of a life-estate only. But this is, we think, an inadmissible construction of the devise. The devise was, in terms, of all the testator's real estate in possession, and the language is sufficient, both at common law and under the statute, without words of inheritance, to embrace the fee, (1 Rev. St. 748, § 1;) and the gift over, in the event only of the death of Cornelius without issue, furnished the strongest ground of implication that the testator intended to vest in Cornelius a title transmissible by descent to his issue.

It is said by Mr. Jarman (2 Jarm. Wills, 752) to be an established rule that, where a bequest is simply to one person, and, in case of his death, to another, the primary devisee surviving the testator takes absolutely. This rule applies both to real and personal estate, and, so far as I know, the authorities in this country uniformly sustain the construction that, in a devise or bequest simpliciter to one person, and, in case of his death, to another, the words refer to a death in the life-time of the testator. Moore v. Lyons, 25 Wend. 119;Kelly v. Kelly, 61 N. Y. 47;Briggs v. Shaw, 9 Allen, 516;Whitney v. Whitney, 45 N. H. 311. It is said, in support of this construction, that as death, the most certain of all things, is not a contingent event, but the time only, the words of contingency in a devise of the character mentioned can be satisfied only by referring them to a death before a particular period; and, as no other period is mentioned, it is necessarily presumed that the time referred to is the testator's own death. See Edwards v. Edwards, 15 Beav. 357.

We think this construction, although supported by somewhat refined and technical reasoning, stands more strongly, in most cases, at least, upon the probable intention of the testator. It prevents the disinheritance of a testator's posterity, which would often happen if a death of the primary legatee at any time was held to be within the meaning of the devise. It may be safely assumed that, where a will is dictated under the influence of family relations, it would seldom happen that a testator would intentionally cut off the issue of a son or daughter from taking the share of the parent in his estate, for the benefit of collateral objects.

There are cases of another class than the one mentioned, in which an alternative limitation, depending upon the death of a primary legatee or devisee, is also held to refer to a death in the life-time of the testator, although the cases are not within the reason upon which the construction in the class of cases first referred to is supported. One of the cases of the second class is where a devise is made to A., and, in case of his death without issue, or without children, or without leaving a lawful heir, then to B. It is manifest that the event on which the gift over is to take effect is distinctly pointed out,...