Mee v. Gordon

• Decision Date: 26 February 1907
• Citation: 187 N.Y. 400,80 N.E. 353
• Parties: MEE v. GORDON et al.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 400

80 N.E. 353

MEE

v.GORDON et al.

Court of Appeals of New York.

Feb. 26, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action for partition by Herbert Mee, an infant, by his guardian ad litem, Edwin A. Watson, against Henry W. Gordon and others. From a judgment of the Appellate Division (93 N. Y. Supp. 675,104 App. Div. 520), reversing a judgment in favor of plaintiff (92 N. Y. Supp. 159), plaintiff appeals. Reversed.

Gerard Roberts, for appellant.

George H. Taylor, Jr., and Henry W. Bookstaver, for respondents.

HISCOCK, J.

This is an action for partition, and involves the construction of the last will and testament of one Harriet M. Kemp, who at death was seised of the premises of which partition is sought. The underlying specific question is whether a clause in said will which, standing by itself, devised an undivided portion of the premises to one John B. Mee, plaintiff's father, absolutely, was by an immediately succeeding clause so modified as to reduce said estate to an interest for life, with remainder to said Mee's wife and children. The learned Appellate Division held that the first clause was not so modified, and that therefore, upon the death of the plaintiff's father, no interest passed to the former. We are thoroughly persuaded that this decision not only defeated the plain purpose of the testatrix, but that it is unwarranted, and should be reversed.

The clauses under review read as follows: ‘In the event of my husband and myself dying at one and the same time or within a short period of each other, I give, devise and bequeath my estate to be equally divided between my sister Elizabeth Illensworth, my brother John B. Mee, my nephew William P. Illensworth and my niece Florence C. Illensworth share and share alike. I hereby direct that the share due my brother John B. Mee be invested by my executors for his benefit during his natural life and for the benefit of his wife and his issue after his death.’ The husband of the testatrix died a short time before she did, so that this disposition became operative upon the probate of the will. It may be conceded, of couse, that the first sentence, standing alone and unmodified, would have given a share to John B. Mee absolutely and without qualification. But it does not stand alone and unmodified. It is immediately, without the intervention of any other provision or purpose, followed by a second sentence, which is clearly connected with and related to it, and which specifically treats of the share referred to and created in the first sentence. When this second sentence directs that ‘the share due my brother John B. Mee be invested,’ etc., it not only plainly but necessarily refers to the share which is described and created in the immediately preceding sentence. There is nothing else for it to refer to. It is utterly irrelevant and inexplicable unless it does refer to that share. Otherwise it is predicated upon nothing, means nothing, and there is no excuse for its existence. As we look at it, even in the light of the learned opinion below and of the argument of counsel, it seems to us that this second sentence only becomes subject to the criticism of ambiguity and obscurity which is leveled at it when we deny to it its connection with the first sentence, and its natural and obvious meaning, and seek to find some other purpose which is nowhere disclosed in the will. We assume that if the testatrix had changed this entire provision, saying: ‘I give, devise and bequeath my estate to be divided equally between * * * my brother John B. Mee, * * * share and share alike, except that I hereby direct that the share due my brother John B. Mee * * * be invested,’ etc., no one would contend that the result of such provision as a whole was to create more than a life interest. It is possible that such form would have been a little plainer than the one in question, but not much; and it is too well settled to require the citation of authorities that the intent of the testatrix will not be defeated by the injudicious use of punctuation, or by the substitution for some perfectly apt word of one less so, providing her meaning can reasonably be found. We think, therefore, that this second sentence does clearly relate to and modify the effect of the first one in so far as it relates to the interest of John B. Mee, and that it is sufficient to cut down, so far as he is concerned, the absolute estate first suggested to an interest for life, even within the rules established by the cases relied upon by respondent, like Banzer v. Banzer, 156 N. Y. 429, 51 N. E. 291.

We do not regard it necessary to review all of the cases cited for the purpose of leading us to an opposite conclusion, for the same principles prevail in all of them; the variation in expression of those principles being but the reflection of the differing phase of facts presented in each case. We shall refer at any length only to that authority which seems to be most strongly relied upon by respondents. The Banzer Case held that an absolute estate created by an earlier provision in the will was not cut down to a lesser estate or interest by a later provision; but the facts upon which that decision was reached are removed by very many degrees from similarity to those now presented to us. This is made apparent, not only by an examination of the facts themselves, but by a consideration of what was said by Judge Martin. The action involved an alleged interest of a widow in real property which passed under the will of her husband. The first provision, as stated in the opinion, read: ‘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 No. 220 West Thirty-Second street.’ This was the only provision which in any way related to the real estate of the testator, and, as was conceded, disclosed a clear and manifest intent to devise to the wife the real estate in question, and to vest in her an absolute fee to the property. As was said by Judge Martin: ‘No clearer or more decisive language could have been employed to effectuatethat purpose.’ After this provision another was inserted in the will, as follows: ‘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 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.’ Reviewing this last clause, Judge Martin said that it was probable that it was intended to apply only to personal property, adding: ‘But, be that as it may, we think it is quite apparent that that clause was not intended and cannot be held to affect or cut down the devise of his real estate to his wife. Its provisions are distinct and disconnected from the clause disposing of the real estate in suit. The manifest purpose of that...