Swarthout v. Ranier

• Decision Date: 27 November 1894
• Citation: 38 N.E. 726,143 N.Y. 499
• Parties: SWARTHOUT et al. v. RANIER.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 499

38 N.E. 726

SWARTHOUT et al.

v.RANIER.

Court of Appeals of New York.

Nov. 27, 1894.

Appeal from supreme court, general term Fourth department.

Action by Derastus Swarthout and others against William F. Ranier to remove a cloud on the title to land. From a judgment of the general term (22 N. Y. Supp. 198) reversing a judgment of special term in favor of defendant, he appeals. Affirmed.

James S. Havens, for appellant.

Briggs & Sunderlin, for respondents.

FINCH, J.

Darius Swarthout died in 1886, leaving a widow, but no descendants, and having brothers and sisters surviving, who became and were his heirs at law. He made his will, by the terms of which he gave all his property, real and personal, to his wife expressing the scope and character of his gift in these words, viz.: ‘To have and to hold for her comfort and support all of the above-named property if she needs the same during her antural lifetime, if she should outlive me.’ The testator's meaning is further explained by the language of a subsequent gift to the Baptist Church, which reads thus: ‘Third. My will and desire is that after the death of my wife, Ann Elizabeth Swarthout, I will, devise, and bequeath to the Wayne Village Baptist Church one thousand dollars, to be put out at interest; and the annual interest is to go toward the supporting a minister to preach for said church, if there is enough of my property left at the death of my wife.’ It is obvious from these provisions that the testator intended the gift to his wife to be something more than a life estate merely, and something less than the absolute fee, and that the widow took a life estate with power to take, also, and convert to her use, so much of the corpus of the estate as she should need to apply to her comfort and support. He comprehended that she might need it all, and so apply it to the permitted purpose as to leave none of it behind her at her death. The language he uses puts a double qualification upon his gift. The widow was ‘to have and to hold the same * * * during her natural lifetime,’ but ‘for her comfort and support if she needs the same.’ That more than a life estate was intended to be given is inferable from the language in which the gift to the church was made, but an absolute fee was obviously not contemplated, although there is no remainder over. The quantity of interest vested in the wife was like that given to the husband in Rose v. Hatch, 125 N. Y. 428, 26 N. E. 467, and was a life estate, with power to take so much of the corpus as should be needed for her comfort and support.

What subsequently occurred was that the widow married a second time; that she gave to her husband a martgage on the real estate devised, for $3,000; that she thereafter died; that her husband thereupon caused the mortgage to be recorded, and asserts its validity, and that the heirs at law, to whom the real estate descended, have brought this action to set aside and cancel the mortgage as a cloud upon their title; and that they have obtained judgment accordingly, from which the mortgagee brings this appeal. His attack is solely upon the asserted equitable jurisdiction, assuming, as we hold, that his wife did not take the absolute fee. At special term the complaint was dismissed upon the pleadings, and upon the ground that, taking as true all its allegations, there was no cloud upon the title, and no need or occasion for equitable relief....