Williams v. Alt

• Decision Date: 29 April 1919
• Citation: 123 N.E. 499,226 N.Y. 283
• Parties: WILLIAMS et al. v. ALT et al.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 283

123 N.E. 499

WILLIAMS et al.

v.ALT et al.

Court of Appeals of New York.

April 29, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Harry C. Williams, individually and as administrator with the will annexed of Thomas Mook, deceased, and others, against William A. F. Alt and others. From an order of the Appellate Division of the Supreme Court in the First Judicial Department (186 App. Div. 235,174 N. Y. Supp. 460), affirming an order of the Appellate Term of the Supreme Court, which in turn affirmed a final and intermediate order of the Municipal Court in a summary proceeding to recover the possession of real property, plaintiff appeals. Affirmed.

See, also, 174 N. Y. Supp. 926.

William R. Hill, of New York City, for appellants.

Max Schleimer, of New York City, for respondents.

CHASE, J.

Thomas Mook died in 1885, leaving a will which was duly admitted to probate. He provided therein as follows:

‘Fifth. I give and devise to my son Henry R. Mook and his wife during their joint lives my house and lot Number 299 Third avenue in the city of New York being about 18 feet 6 inches wide by 97 feet deep, upon the same terms and conditions and with the same powers to the executors as are mentioned in the second clause of this will in reference to said house and lot No. 305 Third avenue. * * *’

The second clause of the will gives and devises to another son ‘and his wife during their joint lives' a house and lot No. 305 Third avenue, and in said clause it is further provided:

‘On the death of the survivor of them I give and devise the same to their lawful issue if they have any; if there be no lawful issue then living then I desire my executors hereinafter named or the survivor or survivors of them or such of them as may qualify to sell said premises or any part thereof either at public or private sale as they may deem most expedient and divide the proceeds of such sale among my then surviving children and the lawful issue of such of them as may then be dead, the issue of each deceased child taking the share his or their parent would have taken if living.’

At the death of Thomas Mook his son Henry R. Mook was a married man living with his wife, Helen Poole Mook. Helen Poole Mook died March 3, 1910. Henry R. married the second time, November 23, 1914, and died February 24, 1917, without leaving issue. The name of his second wife was Jennie D. Mook, and she is now living. Henry R. Mook, on the 9th day of July, 1914, rented the real property described in the fifth paragraph of the will to the respondent William A. F. Alt for a period of ten years to begin May 1, 1915. Jennie D. Mook claims that as she was the wife of Henry R. Mook at the time of his death she is entitled to the possession of said real property during her life. She has expressly consented that William A. F. Alt remain in the possession of said real property on the terms of the lease of July 9, 1914. The appellants are the administrators with the will annexed of the goods, etc., of Thomas Mook, deceased, and the owners under said will of the fee of said real property subject to the possession thereof for life as therein stated. They brought this proceeding to remove the respondents from said real property. Two questions are before us for consideration:

(1) Has Jennie D. Mook any interest in said real property under the will of Thomas Mook?

(2) Even if Jennie D. Mook has no interest in said real property, can the appellants maintain summary proceedings for the removal of William A. F. Alt and his subtenants therefrom.

[1] We do not think that the gift in this case to the son's wife was in any sense to a class. The rule that a gift to a class to take effect in the future vests in the person or persons who answer the description on the date of distribution is not applicable. Salter v. Drowne, 205 N. Y. 204, 98 N. E. 401. The gift was to Henry R., the testator's son, and to his wife. The testator spoke of an existing fact. The gift was to persons designated ‘during their joint lives.’ The wife then living or living at the date from which the will is deemed to speak was designated as the person intended by the testator as surely as if she had been mentioned by name.

It has been held that unless there be something in a will indicating the contrary a gift to the wife of a designated married man is a gift to the wife living at the time of the making of the will and not to one whom he may subsequently marry. Meeker v. Draffen, 201 N. Y. 205, 94 N. E. 626,33 L. R. A. (N. S.) 816, Ann. Cas. 1912A, 930;Van Brunt v. Van Brunt, 111 N. Y. 178, 19 N. E. 60;Van Syckel v. Van Syckel, 51 N. J. Eq. 194, 26 Atl. 156. If the testator had intended to make the gift to his son and his son's wife living at the death of the son, he would have chosen words fairly expressing that intention.

The cases in this state relied upon by the respondents are clearly distinguishable from the case now before us. In Matter of Harris 152 App. Div. 52,136 N. Y. Supp. 711, affirmed 206 N. Y. 690, 99 N. E. 1108, a testator gave certain property in trust for the benefit of his son for life, and upon the death of the son the principal ‘shall belong to his wife and children then living.’ The court held that the wife living at the death of the son, and not a former wife living at the date of the will and the death of the testator, was intended by the testator.

In Meeker v. Draffen, supra, the will under considerationdevised and bequeathed certain property to the testator's son, and further provided that upon the death of the son the property so devised should be equally divided ‘between my said wife and my son's widow and child or children.’ It was held that it was the intention of the testator to give an interest in the residue to the person who was the wife of his son at the time of his (the son's) death.

In the case now before us there is nothing to indicate an intention on the part of the testator to make a gift other than to the wife of his son living at the making of the will or at the time of his (Thomas Mook's) death.

Jennie D. has no interest in the real property under consideration. It has already been so held by the Surrogate's Court, and also by the Appellate Division on an appeal from the order of the Surrogate's Court in a proceeding in which Jennie D. Mook was the petitioner. An administrator with the will annexed of the goods, etc., of Thomas Mook, deceased, was appointed. The appointment was made without notice to Jennie D. Mook. She subsequently made application to the Surrogate's Court to have the letters of administration with the will annexed revoked. That application was denied. Matter of Mook's Estate, 167 N. Y. Supp. 170. An Appeal was taken from that order to the Appellate Division, where the order of the Surrogate's Court was unanimously affirmed. 181 App. Div. 934,167 N. Y. Supp. 1114.

[2] When Henry Mook died the lease made by him, as owner of a life estate in the real property, to the respondent Alt, terminated. Barson v. Mulligan, 191 N. Y. 306, 84 N. E. 75,16 L. R. A. (N. S.) 151.

It is provided by section 1664 of the Code of Civil Procedure as follows:

‘A person in possession of real property, as guardian or trustee for an infant, or having an estate determinable upon one or more lives, who holds over and continues in possession, after the determination of his trust or particular estate, without the express...