Banzer v. Banzer

• Decision Date: 04 October 1898
• Citation: 156 N.Y. 429,51 N.E. 291
• Parties: BANZER v. BANZER et al.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 429

51 N.E. 291

BANZER

v.BANZER et al.

Court of Appeals of New York.

Oct. 4, 1898.

Appeal from common pleas of New York city and county, general term.

Partition by Ellen Banzer against Adam Banzer and others. From a judgment of the general term of the New York court of common pleas (32 N. Y. Supp. 266), affirming a judgment entered on a decision of a special term (30 N. Y. Supp. 803) dismissing the complaint on the merits, the plaintiff appeals. Affirmed.

The action was for the partition of real property situated on West Thirty-Second street, in the city of New York. The property was originally owned by Michael Banzer and John Maier, as tenants in common, each owning an undivided one-half. Maier subsequently conveyed his interest to Susanna Banzer, the wife of his co-tenant. Michael Banzer died in the city of New York, September 28, 1882, seised of an undivided one-half interest in the property mentioned. He left, him surviving, the defendants John Banzer, Adam Banzer, Anna Hanf, Elizabeth Howell, and Christopher Banzer, who were his only surviving children and heirs at law. He also left a widow, Susanna Banzer, who was the mother of these children. He left a last will and testament, which is as follows: ‘After all my lawful debts are paid and discharged, I give and bequeath to my beloved wife, Susanna Banzer, all my real and personal estate now at present and hereafter in my possession. My real estate consisting at present of a part of a house known by the unmber 220 West 32d Street, 20th Ward, so as described in the deed of said house. And my personal estate, and whatever belonging to me at my dead, whatsoever and wheresoever of wat nature, kind and quality soever may be, that she shall have undisputed right, to do and dispose of, according to her own judgment, that, after her, Dead, my beloved children, or their Executor, Administrator shall divite the same, Chair and Chair alike.’ Christopher Banzer, a son of the testator, married the plaintiff, and died in February, 1891, leaving one child, who was also named Christopher, who died before the death of Susanna Banzer, and left the plaintiff, his mother, his only heir at law. Susanna Banzer died, intestate, March 19, 1894, leaving the defendants John Banzer, Adam Banzer, Anna Hanf, and Elizabeth Howell her only surviving children and heirs.

James Kearney, for appellant.

Edward W. S. Johnston, for respondents.

MARTIN, J. (after stating the facts).

The plaintiff bases her right to maintain this action upon the will of Michael Banzer, deceased. She insists that, under its provisions, an estate vested in her husband as one of the children of the testator, subject only to a life estate in the testator's wife; that, upon the death of the plaintiff's husband, it passed to her son; and, upon the death of the latter, it descended to her. Thus, the material question to be determined is whether, under the will of Michael Banzer, any interest in the real estate in question passed to or became vested in his children, of whom the plaintiff's husband was one. This depends upon the testator's intent, which must be sought for in his will, read in the light of the surrounding facts and circumstances. Was it his purpose to devise to his children a vested remainder in the real property given to his wife, or was the devise to her intended to convey the absolute fee? At the time of his death, his wife was the owner, as tenant in common with him, of one undivided one-half of the real property sought to be partitioned. The provisions of the will relating to his real estate are substantially as follows: ‘I give and bequeath to my wife all my real and personal estate at present or hereafter in my possession; my real estate consisting at present of a part of a house known as number 220 West 32d street.’ These are the only provisions which in any way refer to the real estate of the testator. Those provisions disclose a clear and manifest intent to devise to his wife the real estate in question, and to vest in her an absolute fee to the property. No clearer or more decisive language could have been employed to effectuate that purpose. After that provision, he, however, adds: ‘And my personal estate, and whatever belonging to me at my death, whatsoever and wheresoever, of what nature, kind, and quality soever may be, that she shall have undisputed right to do and dispose of according to her own judgment; that, after her death, my beloved children or their executor, administrator, shall divide the same, share and share alike.’ The appellant contends that the last provision should be regarded as a part of the provision by which the real estate was devised; that it modifies it, and evinces an intention upon the part of the testator to cut down the devise to his wife to a mere life estate in the house described, and to convey a vested remainder to his children to be enjoyed by them after her death. We think the construction contended for should not obtain. It seems quite obvious that the...