In this proceeding the sister of the decedent individually and as administratrix with the will annexed of the estate of the deceased, for the allowance of a claim against the estate of deceased husband of which respondent is executor. Judgment of the Special Term allowing the claim in part, was affirmed in part and reversed in part by the Appellate Division, and claimant appeals.
In 1903 the husband and his wife, lived in Brooklyn. The wife owned a building at Classon Avenue, in a part of which she lived with her husband. On January 17, 1903, she made her will, and on March 27, 1903, she died. By her will she made her husband executor and gave her sister, $1,000. She then provided: ‘Fourth. I give and bequeath to my beloved husband all of the rest and remainder of my estate both real and personal to have and to hold the same to him, his heirs and assigns forever, with the understanding that at the decease of the said husband all of the estate which he shall derive under this will which shall then remain by him undisposed of he shall give and turn over to my sister.’
Her will was duly probated, and letters testamentary were issued to the husband. The decision in this case contains findings of fact, among which are the following: ‘3. That the entire estate, both real and personal, of which said wife, died seized or possessed, consisted of the following: ‘Real estate: Classon avenue, borough of Brooklyn, city of New York. ‘Personal estate: Amount on deposit in Kings County Trust Company, $4,500. ‘5. That under said decree the Surrogate’s Court of Kings County, in judicially settling and allowing the account of said husband as executor of the estate of Anna C. Erickson, directly to be turned over to him the sum of three thousand one hundred and fifty-five and 19/100 ($3,155.19) dollars balance of personal property remaining in the hands of said husband as such executor. ‘6. Said husband thereupon transferred to himself said balance of three thousand one hundred fifty-five and 19/100 ($3,155.19) dollars as directed by aforesaid decree, taking the same pursuant and subject to the provision of said fourth paragraph of the said will of the deceased.’
The husband died on the 1st of February, 1914, leaving a last will, in which he gave all of his property, after the payment of his debts and funeral expenses, to his sister and sister-in-law, to be divided between them share and share alike. His will was duly admitted to probate and letters testamentary were duly issued to the defendant as executor. The court further found: ‘8. That at the time of the death of said husband all the estate which he derived under the aforesaid will of said wife, which then remained by him undisposed of, was as follows: ‘Parcel of real estate known as Classon avenue, borough of Brooklyn, city of New York. ‘The sum of one thousand five hundred ($1,500) dollars borrowed on such real estate by said husband. ‘9. That on or about the 3d day of February, 1914, Amanda Tillman, the plaintiff herein, was duly appointed by a decree of the surrogate of the county of Kings administratrix with the will annexed of all and singular the goods, chattels, and credits which were of said wife, deceased, left unadministered. ‘10. That on the 2d day of April, 1915, the plaintiff individually and as administratrix aforesaid caused a claim for said three thousand one hundred and fifty-five and 19/100 ($3,155.19) dollars to be duly presented to said executor, but he has refused to allow the same, and, on the contrary, on or about May 17, 1915, caused notice to be served on the plaintiff herein that he doubts the justice and validity of the claim and disputes and rejects the same.
The plaintiff appealed to the Appellate Division from so much of the judgment as dismissed the first cause of action of the complaint, and the defendant from so much of the judgment as directed the return of the $1,500 as stated. The Appellate Division affirmed the judgment so far as it was appealed from by the plaintiff, and reversed the judgment so far as it was appealed from by the defendant, and directed judgment generally dismissing the complaint. It is from the judgment entered upon such order that the plaintiff appeals to this court.
This action is brought to recover the amount of the two claims presented by the plaintiff to the defendant and which were rejected by him. The complaint is divided into two causes of action; one for the recovery of said $3,155.19 and interest, and the other for the recovery of said $1,500 and interest. Even if we admit that the plaintiff is right in her contentions in regard to the meaning and effect of the will of the decedent she cannot recover either of said amounts, except upon a finding that such amounts, or some part thereof, or of one of them, were derived by her husband under her will, and remained undisposed of by him at his decease.
The Special Term found in substance that none of the $3,155.19 remained undisposed of by the husband immediately before his decease, and the complaint as to the first cause of action was thereupon dismissed. The Appellate Division unanimously affirmed the judgment dismissing such first cause of action. A unanimous affirmance by the Appellate Division imports that there is evidence supporting or tending to sustain the findings of fact made by the trial court upon which such judgment was entered by it.
This court cannot review the question of fact upon the determination of which the judgment dismissing the first cause of action is based. The judgment dismissing the complaint, so far as it relates to the claim for $1,500 and interest, is before us on the merits.
The action is not in terms for the construction of the will of the decedent, although a determination of the plaintiff’s claims, so far as we are permitted to consider them, requires us to determine the intention of the testatrix as expressed in the will. The plaintiff’s contentions are wholly based upon the provisions of the will, and the fact that the husband accepted the devise and bequest to him under such will. No prior or other contract between the decedent and her husband is pleaded or claimed, and no evidence was presented at the trial in any way relating thereto.
In considering the will it is unnecessary to discuss the power and authority of the testatrix, if she had so desired to give to her husband a life estate in her residuary property with authority to use the principal thereof in his lifetime, and to her sister all or any part of such residuary property remaining unused at his death. A gift to one, followed by a gift to another of such part thereof as may remain at the decease of the first taker, can be enforced, when the intention of the giver is clear and definite to limit the gift to the first taker to a life estate, with power to dispose of the principal or any part thereof during his lifetime, and to give to another such part of the principal as is not disposed of in the lifetime of the first taker.
The gift over after a gift that is apparently absolute is sustained, because it is ascertained that it was not the giver’s intention to make an absolute gift, but one qualified and limited by the subsequent or other provisions of the will or instrument creating the gifts. The common-law rule governing repugnant gifts has been changed by statute.
The first part of the fourth paragraph of the will under consideration, which we have quoted, provides: ‘I give and bequeath to my beloved husband, all of the rest and remainder of my estate both real and personal to have and to hold the same to him his heirs and assigns forever.’
It constitutes a clear, certain, unqualified, and absolute gift to her husband. If she had not added a further provision in the will no question could possibly arise as to her meaning and intention, or as to his absolute title to such rest and residue of her estate.
It cannot be disputed that at the time she made her will it was her wish and desire that her husband should give what remained of such rest and residue of her property undisposed of at the time of his death to her sister. Did she intend to do more than express such wish and desire? If she had intended to qualify and limit the gift to her husband to a life estate, with the right to use so much of the principal thereof as he should choose during his life, she should have provided in the will for such limitation in as plain and clear terms as she had used in giving him such rest and residue. Such intention could have been clearly and definitely stated by giving the rest and residue of her property to her sister subject to such prior gift to her husband. She did not leave such rest and residue in trust, nor did she by clear, certain, or other terms qualify the absolute gift to him. The statement by her in the latter part of said fourth paragraph of her will emphasizes and makes certain that the gift to her husband is absolute, because she says that her husband ‘shall give and turn over to my sister what shall remain by him undisposed of. The testatrix trusted her husband to respect her wish and desire in the disposition of any part of the rest and residue of her property not used by him in his lifetime.
The principal contention against the construction of the will as claimed by the defendant rests in the use by the testatrix of the word ‘understanding,’ which it is said imports a contract already made or arising from an acceptance by her husband of the bequest and devise. The word ‘understanding’ is one of common use, but of varying meaning.
It is at least not clear that the testatrix, by the use of the word ‘understanding,’ intended that her husband could not accept the gift to him without thereby becoming obligated as by contract to give any part of the rest and residue of her property remaining undisposed of by him at his decease to her sister. It is assumed by the parties that no contract was ever made upon which the will is based, and that the obligation of the husband to the testatrix’s sister arises, if at all, by the acceptance of the bequest and devise.
While an expectant estate may exist subject to a prior estate with an absolute power of disposition, and although such expectant estate may be defeated in any manner or by any act or means which the party creating such estate in the creation thereof has provided for or authorized (Real Property Law, § 57; Personal Property Law, § 11), an absolute estate is repugnant as a matter of fact to a gift over to a third person. It is because of such repugnance in fact that an apparently absolute estate cannot be cut down or qualified, unless the intention is clear and definite.
Where there is an absolute gift of real or personal property, in order to qualify it or cut it down, the latter part of the will should show equally clear intention to do so by use of words definite in their meaning and by expressions which must be regarded as imperative.
The gift to the husband in this case was absolute. There is no gift therein to Amanda Tillman. Neither is there such clear and certain statement of intention shown by the will as to make him, through the acceptance of the devise and bequest to him, obligated as by contract to give any undisposed of part of the rest and residue of the decedent’s property to her sister, nor to make such contractual obligation a specific charge upon the gift to her husband.
An agreement entered into between a testatrix and a legatee, that is clear and definite in its terms and which constitutes the basis in whole or in part for a legacy, will be enforced by the courts. So, also, where there is a clear and definite gift by will, which by the terms of the will or by operation of law is clearly and definitely charged upon the real property owned by the testator at his death, a person accepting a gift of such real property thereby obligates himself to pay the charge.
The plaintiff in this case has not shown that a contract was made between the sister and her husband on which the will was based, or which contemplated a charge upon the gift to him. She has not shown a gift to her by the will of the decedent. Upon the facts before us, she cannot sustain her complaint.
Accordingly, the court held that the judgment should be affirmed, with costs.
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