Kane against Astor's Executors and others, 9 N.Y. 113

Denio, J., delivered the" opinion of the court. In order to adjust the language used in the sixth codicil of the testator’s will to the subjects on which it was intended to operate, it is necessary to have a distinct understanding of the character of the provisions in' favor of the plaintiff and her descendants contained in the will and prior codicils. She' and they were beneficiaries in devises and bequests of both real and personal property. In regard to real estate there is but a single devise to her of an estate in fee simple commencing in possession at the death of the testator.

This is of a lot on La Fayette Place, mentioned in the fifth codicil.

There is a class of devises in which she takes an estate for life commencing in possession at the death of the testator, with remainder "to her issue living at the time of her death, and in default of such issue to her brothers and sisters, or' to certain of them, named in the particular devise. • The devise in the second clause of the will, of certain lots on La Fayette Place, and others lying between Charlton, Morton and Greenwich streets and the Hudson river; that in the third clause of four lots on Broadway ; that in the first codicil of three lots on the westerly side of La Fayette Place, and that in the second codicil of nine lots on Grand-street, belong to this' class.

All the other provisions in her favor, where the subject is real property, are devises of future estates, and they are either vested at the time of the taking effect of the will, or contingent upon the happening of some subsequent event. Then as to personal property : There is a bequest of two legacies of $25,000 each by the third clause of the will. These are given, as to one, on the plaintiff’s becoming twenty-four, and as to the other on her arriving at thirty years of age; and also a legacy of one-sixth part of $100,000 of city stock by the second codicil, payable on her attaining twenty-one years of age.

All other bequests of personal estate to the plaintiff are to take effect in possession only after the death of some prior legatee for life. There is another diversity in these provisions to be borne in mind in interpreting the sixth codicil, viz: In several instances the gifts are to the plaintiff in common, sometimes with all her brothers and sisters, and sometimes with a part of them.

There is no difference of opinion as to the primary effect of this codicil upon the lot devised to the plaintiff in fee by the fifth codicil, or as to the two legacies and the share of the water stock given to the plaintiff by the third clause of the will. These are taken from her by the third and fourth clauses of the sixth codicil; and the only question is as to the application to them of the power of appointment conferred upon Mrs. Langdon by the fifth clause. But the construction of the first and second clauses of the sixth codicil has given rise to much discussion.

The counsel for the plaintiff maintains that these clauses are so indefinite and uncertain that no effect can be given to them, and that therefore the disposition in her favor by the will and prior codicils must stand unrevoked. Conceding that a different disposition of the property must be effected by the codicil in order to produce a revocation of the prior gifts, the court is yet bound to make a faithful effort, by thé application of sound reason and the established rules of construction, to ascertain the true meaning of the instrument in question.

It is quite apparent that when the sixth codicil was executed a change had taken place in the intention of the testator in respect to the plaintiff, and that he then determined veiy materially to modify the provisions which he had made in her favor.

It may be certainly assumed that he did not mean to commit to her at his death, or prospectively from that event, the unqualified ownership of any considerable part of his property; but that he intended to make a certain provision for her, and to intrust to the discretion of her mother the power to restore to her a part of that which he had thus determined to withhold from her.

The . draftsman of the codicil in question attempted to effect these objects, not by re-writing the former testamentary instruments, but by a few comprehensive and at the same time discriminating sentences referring to those former instruments, to accomplish the object of the testator.

The court below considered it material to determine in the outset which of the several provisions in favor of the plaintiff created vested interests, and which of them were contingent upon the happening of some future event, and having arranged them into classes according to this distinction, proceeded to apply the language of the sixth codicil, with reference to a certain extent, to that classification. The first clause relates exclusively to devises of real estate. It is limited also to property in real estate which by the former provisions the testator had given to the plaintiff or her issue on his decease.

The second clause deals with antecedent gifts of personal as well as of real estate, but is limited to interests to which the plaintiff or her issue would, by the former provisions, have been entitled “ after the death of her mother, brothers and sisters.” The judgment in the court below proceeds on the theory, that the first clause embraces not only the devises to the plaintiff and her issue of land which she would have been entitled to the possession of' on the death of the testator, but also the devises to them of future estates, provided they belonged to the class of such estates which are. held to be vested in interest at the time of the taking effect of the will.

By giving that construction to the first clause, it became necessary to hold that the second clause only embraced devises and legacies which vested for the first time upon or after the death of the plaintiff’s mother, brothers and sisters; in short, to limit that clause to gifts which were contingent on the testator’s death, and until the death of those relatives. This construction has a veiy important bearing upon some of the most valuable gifts in the will. It gives to the executors an estate in remainder on the death of Mrs.

Langdon in one-half of the share devised to the plaintiff of the lot on La Fayette Place, mentioned in the first clause of the will, and in what would have been the plaintiff’s share of the property on Fourteenth-street, devised by the first clause of the second codicil, for the life of the plaintiff, and for her benefit, with a further remainder in that half to her surviving issue; and under the instrument of appointment a like estate in remainder in the plaintiff herself in one-half of the remaining half for her life, and then to her issue in fee; whereas, if these devises are held to fall within the second clause of the codicil, the executors take no estate whatever, but the plaintiff and her issue are simply entitled under the deed of appointment to one-half of the property, after the death of Mrs.

Langdon. And what is still more material, the plaintiff’s share in the legacies of personal property under the first clause of the will and under the second codicil, of which by those provisions she was to have come into possession on the death of her mother, are held to be wholly unaffected by the sixth codicil.

The court below correctly hold that these legacies are not within the first clause, because that does not embrace gifts of personal property; but they hold them not to be within the second clause for the reason that they are gifts which would have vested in interest at the death of the testator, and not, as the court hold, suchas, according to the language of the second clause, “Louisa or her issue would have been entitled” to “after the death of her mother, brothers or sisters.” With a strong disposition not to disturb a judgment which is evidently the result of much reflection, I am yet unable to concur with the court below in its construction of these clauses.

In my opinion, the first clause embraces all devises of real estate (except the lot specially excepted) of which the plaintiff would have been entitled to the enjoyment on the testator’s death if the sixth codicil had not been made, and is strictly confined to that class of devises: and I am further of opinion that the said clause embraces all legacies, as well as devises, which by the primary provisions would first take • effect in possession at the death of her mother, though it should be held that they belong to the class of gifts which vest in interest at the death of the testator.

I have been led to these conclusions by the following considerations: 1. The language employed to discriminate between the two classes of gifts is, “given on my decease to Louisa,” as to the first clause ; and in the second, “ to which the said Louisa would have been entitled ’ ’ ‘ ‘after the death of her mother, brothers and sisters. ’ ’ The most natural construction is that the periods indicated are those when the gifts were to commence in possession and enjoyment.

The.distinction between vested and contingent-.devises depends upon the application of highly artificial rules, and would be less likely to be in the mind of the testator than the more obvious test of the right to actual enjoyment. 2.. The devise in trust to the executors by the first clause requires an estate in possession at the death of the testator. They are to receive the rents and profits and to apply them to the use of the plaintiff, which they could not do in reference to future estates.

Again, it is probable from all the dispositions, of the codicil that this trust for the benefit of the plaintiff was with a view to her actual support in case Mrs. Langdon should not see fit to execute the power of appointment. This object would require an estate in. possession. 3. The last consideration is somewhat strengthened by the fact that the executors take no estate under the second clause in the gifts embraced in it. If we assume that the devise in trust looked to the immediate maintenance of the plaintiff it would be applied to estates in possession, but omitted where future estátes were dealt with. 4.

If the first clause is applied to remainders which vested in interest in the plaintiff at the testator’s death, but not in possession until the termination of a life estate, it will create limitations not allowed by law. This is actually done by the judgment, in regard to the estate on Fourteenth-street, on which three life estates are limited. Thus, J. J. Astor and Mrs. Langdon are entitled to life estates; then, in one-half, the executors take an estate in trust for the life of the plaintiff with' a remainder to her issue.

On the execution of the power of appointment the same thing happens as to one-half of the residue. 5.

The legacies of plate, sums-of debt and deposit, and stocks, in the first clause of the will, the devise of the house and lot on La Fayette Place in the same clause, and the devise of the property on Fourteenth-street by .the first clause of the second codicil, fall within the precise language of the second clause of the sixth codicil, being estates, rights and interests •in lands and personalty to which the plaintiff “ would have been entitled [by the prior provisions] after the death of. her mother.” To withdraw them from the operation of that clause, so exactly descriptive of their character, and to subject them to the prescriptions of the first clause by the application of a recondite rule of law, would violate well-settled rules of

interpretation. The language used in the codicil is not technical, but popular. “ Given at my decease” and “ entitled after the death of her mother” are expressions to which the law has not affixed a determinate meaning as distinguished from their popular sense. They are' not words of art, requiring a resort to technical rules for their

interpretation, but words of general description, • and to be construed by the application of sound judgment to the various provisions of which they form a part. . The language of the second codicil is nearly the same .with that used in the primary gifts to the plaintiff on the death* of her mother. The presumption is that in both instances. they are used in the same sense, 6.

There is enough in the sixth codicil to show a general intention to affect all the former testamentary provisions in favor of the plaintiff; By providing for all the devises of land, given on the testator’s decease, and for all gifts of land and personalty which the plaintiff would be entitled to after the death of her mother, brothers and sisters, and giving to the language its natural signification, all the prior gifts would be embraced, except the two legacies of $25,000 each and a share of the water stock, which were to take effect, not necessarily on either of these events, but on the plaintiff’s, attaining a certain age.

These gifts, as they did not fall within the prior descriptions, were accordingly made the subject of the third clause, and thus all the gifts to, the plaintiff were embraced in some branch of the codicil-. A construction which should leave untouched a share in the large property given to the plaintiff on the death of her mother by the first clause of the will, would be hostile to the general intention apparent from the codicil.

The motive which dictated the changes which the court below concede to have been made would not have left in their full force the legacies last referred to. . :.I think the court below fell into an error in the manner of giving .effect to the deed of appointment*.

It is unnecessary.-.to consider what effect the codicil would have wrought upon the prior testamentary provisions, if the power of appointment had been, invalid, or incapable from any cause of execution; for we are of opinion that it is quite valid and effectual. ■ Nor do. we find any difficulty to arise out of the circumstance that the power is limited “to any part not exceeding in value one-half of the real and personal estate ” taken, from the plaintiff.

As the gifts over to others of the property taken from her were to different descendants of the testator, it could not have been his intention that the half or lesser share which might be restored by the power should come out of any portion less than the whole of that which had been taken from the plaintiff or in unequal proportions. Such a construction would enable the donee of the power to discriminate among the parties taking portions of the share of the plaintiff ih a manner which we cannot suppose the testator could have contemplated.

He unquestionably intended to place the plaintiff to a certain extent in the power of her mother; but there is no reason to believe that he designed to clothe the mother with any such authority over the shares of any other of his devisees or legatees. Now we suppose an undivided half of a particular item of property is one-half in value of the same property, and so of any other aliquot share. When, therefore, the testator authorized Mrs.

Langdon to appoint and give to the plaintiff and her issue “ any part not exceeding in value one-half of the real and personal estate ” taken from the plaintiff, we suppose he committed to her discretion the question whether she would restore anything, and if she did, whether it should be one-half or one-quarter, or any' other part not exceeding one-half; and that he intended it should be an aliquot share of what had been taken away by the codicil.

There is nothing in the language of the power looking to any other method of executing it; many of the primary gifts had been made in that way, and in the codicil itself the same course is pursued in carving out the trust estate devised to the executors. But if the power would admit of another method of getting at the one-half in value, at least it does not forbid its being taken by aliquot parts.

The deed of appointment actually executed, gives to the plaintiff all that the trustee of the power was authorized to give, without attempting any specification of particular parcels of property; and I know of no method of giving it effect, but by holding that it operates upon fractional parts and conveys- the largest undivided shard that the trustee was authorized to appoint in each parcel of property taken from the plaintiff.

The error which we suppose the court to have committed in applying the power, is in giving to .the plaintiff only a life estate, with the ultimate- title to her issue, in property which was by the primary provisions given to her absolutely or in fee. For instance, the testator gave her absolutely one-sixth of $100,000 of city stock called water stock. The court below held that the power was applicable to this property, but that it must be and was so executed as to convey to her only the income of the stocks for life, and that at her death her issue were entitled to it in full property.

The same disposition is made of the two legacies which were given in such property on her attaining the requisite age: The lot on the -westerly side of La Fayette Place which was devised to the plaintiff in fee by the fifth codicil, and which by the sixth is taken from -her and given to Mrs. de Nottbeck, is held to be subject to the power of appointment as to one-half; and as to that half it is held that the plaintiff under the deed of appointment takes an estate for life with remainder to her issue born and unborn.

The original provisions never contemplated successive estates in this lot or these legacies in the plaintiff and her issue. The inquiry now is, whether by a proper construction of the fifth clause of the codicil she was to have a different or less estate in the part which her mother might restore" to her by the execution of .the power.

The. power is “ to appoint and give to the said Louisa and her issue, or to her or their use, any part not exceeding in value one-half of the real or personal estate by this codicil taken from Louisa and given to others.” The argument in favor of the judgment of course turns upon the effect of the words “ and her issue.” But it must be recollected that a large portion of the property within the scope of the power was devised to the plaintiff for life with remainder to her issue. The words referred to will not fail to have an effect, therefore, though they are not applied to this subject.

The power does not say that the plaintiff shall take a life estate or that her issue shall take in remainder. If the language were construed literally the plaintiff and her children would take per' capita, which would be preposterous. Nor does the clause state that the issue who are to take under the execution of the power are those who shall' survive the plaintiff at the time of her death, according to the careful phraseology of the primary devises, and which is kept up in the first clause in the limitation of a future estate in the share devised to the executors in trust..

Again, the power in terms embraces only “ the real and personal estate taken from Louisa,” yet it is quite clear that the corpus of the property was intended, else naming the issue as appointees would be inconsistent and absurd. I think, moreover, that the power looks to a restoration instead of a fresh scheme of limitations. This is apparent from comparing the vague and indeterminate manner • in which the plaintiff’s issue is mentioned with the careful phraseology which is used throughout the will and in all .the codicils, including that under consideration, where a future estate is intended to be limited.

It should be remembered too that the whole codicil is framed upon the plan of adjusting its provisions to the prior gifts by way of brief reference and allusion, without repetition or circumlocution.

Thus, the devises over to the other brothers and sisters in the first and second clauses are tó them and their issue as an increase of their shares, instead of a formal statement of words of limitation; but where new limitations are created, as in the latter part * of the third clause, in regard to the water stock, and in the seventh clause in respect to the estate near • Geneva, the former precise language is again resorted to* .These' .considerations.■ have led me to the confident conclusion that the power of appointment does not provide for any new limitations to the plaintiff’s issue; that where the primary gifts gave the ultimate- estate td the .plaintiff, she take's a like estate in'that, part of the samé property which is given to her,by the..instrument of appointment, and that where'by,the prior gifts the issue would have been entitled to, future estates, they take like future estates in the same property under .the deed of appointment.

The first, fourth and fifth divisions of the judgment should therefore be ■modified do. as to give: the plaintiff an éstate'in fee simple in the lot on the’westerly side of La Fayette Place, being lot number four -; and so as to give to. her as her own property one-twelfth part of the $100,000 of water stock and one- . half., the two legacies of $25,0.00 each on her attaining .the age to entitle her to. them by the primary bequests.. ■ The sixth division of the judgment relates to the-- lot on, La Fayette.: Place, devised by the first .clause .of the will, and the house and lot on Fourteenth-street mentionéd in .the first clause of the second codicil.' Both, the errors which we suppose to. have Occurred enter into the disposition which the. court below, has made of these lots.

An. estate in remainder after the death of Mrs. Lan'gdon, and in trust, is declared to be vested in the executors, as to one-half of what would have been the plaintiff’s share, for the plaintiff’s life, and half of; the other, half .is given to .the plaintiff for'life, and then the three-fourths are given to her issue, though by the primary devises the plaintiff took a vested remainder in fee..

This part of fhe judgment should be modified by leaving out what is said respecting a trust estate in the executors, and changing the aliquot parts mentioned in the latter part- of the clause, so that they will represent one-half of the share the plaintiff would have .taken by the original devises; and-it should be further modified so as. to give the remainder to.the plaintiff in fee, declaring however that in the event of her dying in the lifetime of her mother, leaving issue, such issue are to take the remainders in her place.

To finish the changes in the judgment which the foregoing conclusions will require to be made, the fourth division of the judgment, which denies to the sixth codicil any operation upon certain pecuniary legacies, should be stricken out; and instead of it, the judgment should declare the effect of the original bequests, as stated by the court below; that by the operation of the sixth codicil, one-half of the amount which the plaintiff" would have been entitled to upon the death of her mother, will, in that event, go to her brothers and sisters, who may survive Mrs.

Langdon, or to the issue of such of them as may die before that event; ' and that the other half of her share of the plate, sums of deposit and debt and stocks mentioned in the first clause of the will, on the death of Mrs. L. will vest in possession in the plaintiff in absolute property, or in her issue should she die before Mrs. Langdon, leaving issue; and her share of the other half of the water stock will, on the death of Mrs. Langdon, vést in the plaintiff in absolute property, subject to be divested should she die under that age without surviving issue.

The share of the plaintiff in the furniture in the house on Fourteenth-street is to be disposed of in the same manner, the plaintiff taking, on the death of J. J. Astor and her mother, one-half of the share she would have had if the original provisions had not been changed. In other respects, we think the judgment of the superior court was correct. 1. It will be seen that we assume that the power of appointment operated upon the two legacies of $25,001) each, bequeathed to the plaintiff by the third clause of the will. The point is not entirely free from doubt.

It may be that the testator, in declaring that he revoked the two legacies entirely, intended them and the money which they represented to be considered as annihilated, in interpreting the other provisions of the codicil, and there is certainly probability in the idea that the expression in the fifth clause, “ by this codicil taken from Louisa and given to others,” limits the power to cases of gifts taken from the plaintiff and expressly given to others by the codicil. But upon the whole, we think the other the safest construction. These legacies fall precisely within the terms of the power.

They were taken from the jdaintiff They were likewise given to others ; for nothing can be clearer than that the residuary legatees would be entitled to them in consequence of the revocation, and that by the gift of the testator. All this, too, is effected by the codicil. The revocation ex vi termini took them from the plaintiff and gave them to the residuary legatees. The other view is founded upon conjecture, and, however probable, it is not a safe basis of

interpretation. It is insisted on the part of the counsel for Mrs. de Nottbeck that the power of appointment is not applicable to the lot on La Fayette Place devised in fee to the plaintiff, and by the sixth codicil given by substitution to Mrs. de Nottbeck, then Cecilia Langdon. This provision belonged to the class of primary gifts, so far as the time of its taking effect was concerned, which are dealt with in the first clause' of the codicil, but it differed from those devises in the circumstance that the entirety was given to the plaintiff, instead of a share in common with her brothers and sisters.

It could not therefore be embraced in the first clause, where the substituted devises are to the other children of Mrs. Langdon having shares in the same property. Hence it was excepted from the operation of that clause, and made the subject of a separate provision. The power of appointment follows that provision; and by its terms is applicable to half of all the real and personal estate by the codicil taken from the plaintiff and given to others.

The substituted devise falls precisely within the language of the power, and I am unable to perceive any evidence of an intention in the testator to exclude it from its operation.

It is true, as suggested on behalf of Mrs. de Nottbeck, that the original devise looked to an undivided enjoyment of the lot as the site of a dwelling-house, and the manner in which the substitution is effected, leaves the conditions in that respect in force; but the testator must have known that the power of appointment might be left unexecuted, and in that event the condition as to the manner of building would be binding upon the substituted devisee, and the testator’s intentions in that respect would be carried out.' The power, however, was thought of sufficient importance to override these considerations, and being universal in its scope, and being, moreover, the last announcement of the testator’s will, it must prevail, though the intention of the testator in one particular should be disappointed.

Having come to the foregoing conclusions as to the construction of the codicil, it is obvious that I think it valid, and effectual to accomplish the purposes for which I have supposed it was intended. It is not to .be disregarded because there are difficulties touching its construction, or because judges disagree on some points respecting its operar tio'n.

The.court is bound to apply itself with diligence and attention to find the meaning of the testator if it can possibly be ascertained, however difficult or obscure; and it is only after every effort to find that meaning has proved fruitless, and it has been found impossible to solve the difficulty and dispel the obscurity, that the provision is to be rejected as wholly unavailing; The difficulties which this codicil presents appear to me to arise mainly from the effort to compress within a few brief words of reference a great many different subjects.

The full and clear exposition of the testator’s views perhaps required more circumlocution. Still, it has not seemed to me difficult to arrive at reasonably satisfactory conclusions.

I find no difficulty for instance in holding that the substituted devises in the first clause of the sixth codicil are of the corpus of the property to which it relates, and not of limited estates in that property; and that when it speaks of all such shares, estates and interests as are given to Louisa or her issue on his decease, it means the fee simple of the-aliquot shares in each piece of property which by the prior provisions he -had devoted to:the immediate benefit-of the plaintiff, and in respect to which he had provided for the succession of her issue.

I' think the true reading of the clause is this: “As to all such shares, estates and interests in land,” &c., “ I give one-half of said land to the other children of my daughter Dorothea,” &c. The other provisions, to wit, the trust estate in the executors, with- the subsequent limitations of that share, the devise to the other children of Mrs. Langdon, and the power of' appointment, each call for the entire interest in the land. The substituted -devise to the other children of Mrs.

Langdon requires a fee, by force of the words' “ to be taken arid held as an increase of the shares or sums given to them rinfi their issue in the sanie property.” The children and their issue together took a fee iri their primary shares v-and "an increase of the shares of themselves and their issue would require a like estate in fee.' It is obvious that the substituted devises are limited as tó each parcel of land to the children who took shares in' the same parcel under the original devises.

Again, the power to give one-half of whiat was taken away from the plaintiff to the other children .of'Mrs: Langdon, clearly does not embrace any part of the half given in trust' to the executors. The' latter was not in any ordinary sense taken from the plaintiff. Although a legal estate was vested in the executors for- her life, the object of that part of the arrangement was to secure to her the beneficial -interest and to give the estate ultimately to her issue, who would have been entitled under the primary devises. I agree with the court below that the contingent estates to arise in favor of 'Mrs.

Kane or her issue in the property given to Mr. Bristed are not affected by the sixth codicil. The first clause does not apply, because the estates are not given upon the testator’s death; and they are not within the second clause, because that is limited to estates and interests to which the plaintiff or her issue would be entitled after the death of her mother, brothers and sisters, whereas these gifts were to take effect upon the death of Mr. Bristed, which might happen in the lifetime of those relatives. I am also satisfied with the disposition made in the court below of the income, during the lifetime of Mrs.

Langdon, of that share of the water stock affected by the power of appointment. By the execution of the power without reservation, I think Mrs. Langdon must be held to have transferred her life interest in the income in the share conveyed by the deed of appointment. She was competent to transfer it without regard to the power, and I am of opinion that the language of the deed is sufficiently comprehensive to pass that right.

I assent to the position that the execution of the power should not be taken to create ulterior limitations on failure of issue of the plaintiff; and to the quality of the remainders which her issue take as determined by the judgment in the court below. I have some doubt whether the limitations in the primary devises and bequests ought not to have been strictly followed in respect to the shares restored by the deed of appointment. The point is not practically very important, and I do not feel sufficiently confident that the judgment in this respect is wrong, to wish to disturb its provisions.

The judgment of the court below must be modified in the particulars which have been mentioned; but as De Nottbeck and wife have alone appealed from the portions of the judgment which we have thought more favorable to Mrs. Kane than they ought to have been, they only, or rather Mrs. De Nottbeck, are entitled to the advantage of ' the change. Should the parties fail to agree upon the settlement of the decree of this court, it must be settled before one of the judges. All the judges except Morse, J., who was not present, concurred in the above conclusions. Ordered accordingly.