Matter of Stephan

Decision Date26 June 1950
Citation199 Misc. 118
PartiesIn the Matter of the Construction of The Will of Gustav Stephan, Deceased.
CourtNew York Surrogate Court

Thomas Schleier, as administrator c.t.a. of Gustav Stephan, deceased, petitioner in person.

Wingate & Cullen for Charles Stephan, respondent.

William Ryan and L. W. Widdecombe for Lucy Kowell, respondent.

John A. Cosgrove for William Stephan and others, respondents.

BOYLAN, S.

This is a proceeding for the construction of the will of decedent insofar as it purports to dispose of his house and land appurtenant thereto; his workshop and likewise land appurtenant thereto; the contents of his house and workshop and a "Workmen's Sick and Death Benefit Fund of the United States of America" death benefit certificate.

The material portions of the will read as follows: "In gratitude for tender care in my declining years, and for faithful housekeeping, I bequeath my house to my daughter, Lucy Dawson, to share the same with my son Charles Stephan. My workshop will be kept by my son William Stephan.

"After all my cremation expenses are paid, all what is left from my savings in the "Franklin Society", 217 Broadway, New York City, "Corn Exchange Bank, Fulton and Pearl Streets, New York City, "Prudential Life Insurance Company, and "Workmen's Benefit Fund" shall be divided to all my children; Lucy Dawson, William Stephan, Elsie Stanecker, Charles Stephan, Edwin Stephan, Herman Stephan, Irene Baranoski."

With the exception of the Prudential Life Insurance policy, the decedent owned, at the time of his death, all of the items specifically set forth in the will and, in addition thereto, the land upon which both the house and workshop were erected together with the contents of both.

Lucy Kowell (formerly Lucy Dawson) contends that the devise of the house to her is an absolute gift in fee and cannot be cut down nor limited by subsequent words which would reduce the devise (Matter of Blanch, 126 Misc. 421; Clarke v. Leupp, 88 N.Y. 228; Tillman v. Ogren, 227 N.Y. 495). Her brother, Charles Stephan, contends that the devise is to both of them as tenants in common.

It is true that, where there is an absolute gift of real or personal property, in order to qualify it or cut it down the latter part of the will should show equally clear intention to do so by use of words definite in their meaning and by expressions which must be regarded as imperative (Clay v. Wood, 153 N.Y. 134; Matter of Gardner, 140 N.Y. 122; Roseboom v. Roseboom, 81 N.Y. 356; Post v. Moore, 181 N.Y. 15; Tillman v. Ogren, supra). An absolute estate by its very definition is repugnant to any qualification or gift over to a third person, and consequently the courts will not tolerate an apparently unqualified estate to be modified or qualified unless the intent is clear and definite (Matter of Rooker, 248 N.Y. 361; Banzer v. Banzer, 156 N.Y. 429; Trask v. Sturges, 170 N.Y. 482; Weber v. Kress, 198 App. Div. 687). It is also true that the principles and objects of the testator must be gathered from the four corners of the will and not from some isolated or detached sentence or particular expression. The entire instrument must be read as a whole and the different provisions reconciled and harmonized if possible (Fell v. McCready, 236 App. Div. 390, affd. 263 N.Y. 602). The intent must be gathered from the whole will with context and cognate gifts shedding light upon the meaning (Matter of Evans, 234 N.Y. 42). All the parts and provisions of a will are to be construed in relation to each other so as, if possible, to form one consistent whole which will operate together. Contradictory clauses should, if possible, be reconciled accordingly (Matter of Title Guar. & Trust Co., 195 N.Y. 339).

In the case at bar the contention of Lucy Kowell cannot be sustained on the theory that a previous absolute gift was reduced by a subsequent limitation less clear in meaning and intention for the reason that all of the words are used in the same sentence and taken together show a clear intention on the part of the testator to give his house to his daughter, Lucy, and his son, Charles, as tenants in common. Independently of this construction, Lucy and Charles would be tenants in common pursuant to the provisions of section 66 of the Real Property Law which reads as follows: "Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy."

When the testator devised his house to Lucy and Charles and his workshop to William, what part of the land was devised therewith? The plot upon which the house is erected was purchased by deed dated April 24, 1911, and is forty feet in front and rear and approximately 120 feet deep on both sides. The plot upon which the workshop is erected was purchased by deed dated July 16, 1915, is twenty feet in front and rear and approximately 120 feet on both sides. It adjoins the "house" property on the southerly side. There is a row of flowers, bushes or hedges on the line where these two parcels adjoin. William is the owner of a house and land appurtenant thereto which adjoins on the southerly side the plot where the workshop is erected. The proof shows that William is the only mechanic amongst the four sons and had been trained by the decedent as a carpenter and cabinet maker. They had been partners and William had helped the decedent construct his own home and workshop.

The decedent was born in Germany and migrated to this country many years ago. In bequeathing the workshop to William, the testator used the words "will be kept". The English meaning of the verb "to keep" is to hold, to maintain, retain, reserve or withhold. The German word for "keep" is "haben" and the meaning of "haben" is held, have, keep, possess or own.

The devise of a dwelling house and workshop sufficiently definite and certain to afford means of identification thereof, passes title to all of the ground covered by the house and workshop and such additional and adjacent lands of the testator as were used in connection with the house and the workshop on the date of the execution of the will and is necessary for the reasonable use and enjoyment thereof in the absence of a clear and unambiguous expression of intention to the contrary. (Matter of Brown, 119 Cal. App. 195; Massachusetts Audubon Soc. v. Ormond Vil. Improvement Assn., 152 Fla. 1; Dudley v. Milton, 176 Mass. 167; Marston v. Stickney, 58 N. H. 609; Hartfield v. Pennsylvania Co., 89 N. J. Eq. 45; Broadhurst v. Mewborn, 171 N. C. 400; Gilbert v. McCreary, 87 W. Va. 56.)

The court concludes that the testator intended to devise to Lucy and Charles the property described in deed dated April 24, 1911, and recorded in the Richmond County Clerk's Office in Liber 395 of Deeds, page 7, on July 26, 1911; and further intended to devise to William the property described in deed dated July 16, 1915,...

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9 cases
  • Vetroock's Will, In re
    • United States
    • New York Surrogate Court
    • June 28, 1962
    ...the dual condition had not been met due to the granddaughter having died with issue, although before reaching 35. Matter of Stephan's Will, 199 Misc. 118, 98 N.Y.S.2d 416, also cited by the Special Guardian found gifts by implication of the contents of the house and a workshop where the wil......
  • Estate of Trigoboff, Matter of
    • United States
    • New York Surrogate Court
    • January 15, 1998
    ...N.Y.S.2d 909; Matter of Dorb, 58 Misc.2d 734, 296 N.Y.S.2d 735; Matter of Ziolkowski, 47 Misc.2d 752, 263 N.Y.S.2d 72; Matter of Stephan, 199 Misc. 118, 98 N.Y.S.2d 416). Conversely, the payor may waive compliance with procedural rules and seek or await a judicial determination of the prope......
  • Schermerhorn's Estate, In re
    • United States
    • New York Court of Appeals Court of Appeals
    • November 1, 1972
    ...338 N.Y.S.2d 111 ... 31 N.Y.2d 739, 290 N.E.2d 149 ... In the Matter of the ESTATE of Julia SCHERMERHORN, Deceased ... Simon J. SCHERMERHORN, Jr., as Administrator C.T.A. of ... Estate of Julia Schermerhorn, Deceased, ... 378, 108 N.E. 554, Supra; Matter of Stephan's Will, 199 Misc. 118, 98 N.Y.S.2d 416; Estate of Sandersfeld, 187 Cal.App.2d 14, 9 Cal.Rptr. 447; Cuppett v. Neilly, 143 W.Va. 845, 105 S.E.2d 548; ... ...
  • Tuttle v. Simpson, 9515
    • United States
    • Texas Court of Appeals
    • June 30, 1987
    ...concerning whether the term shop, for the purposes of a conveyance or will, includes its contents. A New York case, Re Stephan's Will, 199 Misc. 118, 98 N.Y.S.2d 416 (1950), held that the contents of a house and a workshop passed under a devise of the house and workshop where the house was ......
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