Webb v. Sweet

• Decision Date: 08 January 1907
• Citation: 79 N.E. 1024,187 N.Y. 172
• Parties: WEBB et al. v. SWEET et al.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 172

79 N.E. 1024

WEBB et al.

v.SWEET et al.

Court of Appeals of New York.

Jan. 8, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Arnold J. Webb and another against Gerrit S. Sweet and another. From a judgment of the Appellate Division (95 N. Y. Supp. 1165,109 App. Div. 911) of the Supreme Court in favor of plaintiffs, defendants appeal. Affirmed.

One Arnold Webb died, leaving a will which has been duly admitted to probate. By his will he gave certain specific and general legacies and made certain bequests, and he also provided as follows: ‘Fifth. I hereby direct my executor hereinafter named to pay out, expend and invest one thousand five hundred dollars in the purchase of real estate to be selected by him in his discretion and best judgment for my niece, Emily Sweet, and to be conveyed to the said Emily Sweet to be held by her during the term of her natural life, and after her death to the heirs of her body forever, which said premises so to be purchased as aforesaid, I hereby give, devise and bequeath to the said Emily Sweet for and during her natural life and after her death to the right heirs of her body forever.’ He gave, devised, and bequeathed the rest, residue, and remainder of his estate by a provision in his will as follows: ‘Sixteenth. I give, devise and bequeath all the rest, residue and remainder of my estate and effects, real and personal, not herein otherwise disposed of after payment of my debts, legacies and funeral charges, to my brother Reuben G. Webb of the City of Davenport in the state of Iowa, and his heirs forever (including my gold watch), with my earnest request that in case of the above-named legatees or devisees should from any unforeseen accident come to want he will provide for them and make them as comfortable as possible and as he, in his judgment, thinks proper.’ Said Emily Sweet survived the testator and died intestate without descendant, never having had a child. She left her surviving the defendants Sweet and Lane, her brother and sister, her only heirs at law. Said Reuben G. Webb survived the testator and died intestate, leaving him surviving the plaintiffs, his two sons, his only heirs at law. The defendant Parker is the duly appointed trustee under said will, and he has in his hands as such trustee $1,500 subject to investment as provided by the fifth paragraph of said will, but it has not been so invested, and it remains in his hands with some accumulated interest thereon. Such fund of $1,500 and accrued interest is claimed by the plaintiffs, and also by the defendants Webb and Lane, and the question in difference between them was submitted to the Appellate Division upon an agreed statement of facts, and said court rendered judgment in favor of the plaintiffs and against the defendants, declaring that the plaintiffs are the owners of, and entitled to, said fund, and directing the defendant trustee to pay the same to the plaintiffs, less his legal fees as such trustee. The defendants Sweet and Lane have appealed to this court.S. C. Huntington, for appellants.

Henry Purcell, for respondents.

CHASE, J. (after stating the facts).

The testator died prior to the enactment of the real property law (chapter 547, p. 559, Laws 1896), and the will must be interpreted in recognition of, and obedience to, the provisions of part 2, c. 1, tit. 2, art. 1, of the Revised Statutes (1st Ed.). It is provided by section 3 of said article that: ‘all estates tail are abolished; and every estate which would be adjudged a fee tail, according to the law of this state, as it existed previous to the twelfth day of July, one thousand seven hundred and eighty-two, shall hereafter be adjudged a fee simple; and if no valid remainder be limited thereon, shall be a fee simple absolute.’ It is also provided by section 28 of said article that ‘where a remainder shall be limited to the heirs, or heirs of the body of a person to whom a life estate, in the same premises, shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them.’ The plaintiffs claim that Emily Sweet took a life estate in said property, and that, upon her death without heirs of her body, the contingent remainder became vested in them as the heirs at law of said residuary legatee. The defendants Sweet and Lane claim that, under said section 3 of the Revised Statutes, said Emily Sweet took a fee simple absolute in said property, and that upon her death it descended to them as her heirs at law. Was the will correctly construed in rendering judgment in favor of the plaintiffs?

It is not questioned here but that the unqualified direction of the testator to invest the fund of $1,500 in real property in the manner stated, operated as an equitable conversion of the fund into real property and that it should be disposed of as if the investment had in fact been made.

We first look to the will to ascertain the testator's intention and have no difficulty in concluding that the testator intended to limit the devise to Emily Sweet to her life. It is so expressed by him in clear and unmistakable words. Subject to such life estate he intended that the real property purchased with said $1,500 should vest in her descendants, if she left descendants. There is nothing in the will to justify the contention of the...