In re Vowers' Will

• Decision Date: 04 June 1889
• Citation: 113 N.Y. 569,21 N.E. 690
• Parties: In re VOWERS' WILL.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 569

21 N.E. 690

In re VOWERS' WILL.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, Third department.

The surrogate of Warren county admitted the will of Hiram Vowers, deceased, and construed a provision thereof for testator's widow. She appealed from the last-mentioned part of the decree, which was affirmed by the general term, and she again appeals.

S. & L. M. Brown, for appellant.

A. Armstrong and Charles Hughes, for the proponent, respondent.

FINCH, J.

The question of construction raised by the language of the testator in framing the provision for his wife is of a character so unusual that we can find no precise parallel or precedent in the courts of our own state. The case is one of a legacy by implication; that is, created not by a direct or express gift, but inferred from language which shows an intention to give the legacy, and can have no other reasonable explanation. Instances of such legacies are not uncommon in the English reports, and a reference to some of them will disclose their general character, and the rule of solution adopted. In Goodright v. Hoskins, 9 East, 306, the action was ejectment to recover certain leasehold premises which the testator possessed in his life-time for a term of 99 years. His will gave the estate to his son Richard until the latter's eldest son, Thomas, should attain 21, and no longer. If Thomas should die in his minority, then the estate was to go to his younger brothers, John or Richard, or either of them who should attain 21. The testator thereupon added: ‘And I desire the said premises of Roskief may be quitted and delivered up as aforesaid by my said son Richard Hoskins accordingly.’ It was argued for the plaintiff that there was no gift to Thomas, in terms, on his arriving at the age of 21, which was true; but Lord ELLENBOROUGH said there was a strong implication from the words of the will that the testator meant that Thomas should have Roskief, for his father, at the majority of Thomas, was to quit and deliver up the premises, and to whom if not to Thomas? The court added an expression of pleasure that they found themselves warranted by the authorities in establishing a gift to Thomas by implication. In Thorp v. Owen, 2 Hare, 607, the testator's direction that everything should remain ‘as it now is' during the life of his wife, was held to give her a life-interest by implication. The rule of construction which seems to have prevailed is that the inference from the will need not be irresistible, or such as to exclude all doubts possible to be raised, but must nevertheless be such as to leave no hesitation in the mind of the court, and must not rest upon mere conjecture. The intention must be clear, so that no other reasonable inference can be made. Grout v. Hapgood, 13 Pick. 164. In our own state we are referred to Marsh v. Hague, 1 Edw. Ch. 174, in which bequests were implied to children of an uncle not included in the list of legatees by force of a subsequent clause which assumed that the gift had been made to them. The court said there was no other rational meaning to be given to the expressions used, and that construction must be given, or the words of the testator rejected as senseless or useless, which was not permissible. Undoubtedly in every such case we must be quite sure of the testator's intention, and not substitute for it some notion of our own; but when his words leave no doubt about his intention, and can have no other reasonable interpretation, we are justified in upholding a legacy by implication where no gift in express terms has been made. Assuming this to be a correct statement of the law, we may now inquire whether the facts of the present case fall within the range of its application.

The testator had a wife, but no children. By his will he first directed the payment of his debts, and then provided as follows: ‘ Second. I give, devise, and bequeath unto my beloved wife, Marietta Vowers, the use of my dwelling-house and furniture therein for and during her natural life, said dwelling-house being the same in which I now reside in the village and town of Caldwell aforesaid; and I also direct my executor hereinafter named to pay to my said wife annually for and during her natural life the sum of fifty dollars, to have and to hold the same to her sole use and benefit. This provision to be accepted by my wife in lieu of her dower right and...