Van Horne v. . Campbell , 100 N.Y. 287 ( 1885 )

In discussing the questions presented by this appeal, it will be convenient to treat it as a case still continuing in the name of Jane Van Horne, the original plaintiff, notwithstanding her death and the substitution of her heirs and executors as plaintiffs. It was then an action to recover, in ejectment, parcel of fourteen acres of land, situate in the village of Fonda. The main question in the case is whether a certain clause in the will of Jellis Fonda created, in the event of the death of Douw Fonda, without issue, a valid remainder in, or was a good executory devise of, the fourteen acres to his son Henry V.

Jellis Fonda died in 1791, and devised to his wife, Jannettie, Fonda, an estate for life in the fourteen acres, together with other lands, and after her decease, devised certain lands to his son "Henry, to hold to him, his heirs and assigns, forever," and as to the fourteen acres, provided as follows: "After her decease I give, devise and bequeath the same to my son Douw, to hold to him, his heirs and assigns, forever." The last disposing clause read as follows: "It is my will that if either of my sons shall die seized of the estate hereinbefore bequeathed or any part thereof, without lawful issue, that then the estate of him so dying seized hereby bequeathed shall descend to the other of my said sons, in which case the survivor shall pay to my said three daughters each the sum of one hundred pounds." All of the parties claim under the same title, but the defendants, being in possession, rely solely upon the invalidity of such title to defeat a recovery.

One of the claims made by the respondents in respect to this clause is, that it is void as offending the provisions of the statute against perpetuities, inasmuch as the phrase "dying without lawful issue" is urged as meaning an indefinite failure of issue, whereby the attempted remainder might extend beyond the lawful period.

If it be conceded that the rule, as it existed at common law previous to the revision of the statutes, construed these terms, standing alone, as meaning an indefinite failure of issue, it is nevertheless true that courts, for the purpose of giving effect to a remainder, attached importance to slight circumstances appearing in a will as indicating an intention on the part of the testator to limit the application of such words to issue living at the death of the first taker. (Fosdick v. Cornell, 1 Johns. 440; Jackson v. Blanshan, 3 id. 292; Ex'rs of Moffat v. Strong, 10 id. 13; Jackson v. Staats, 11 id. 337;Anderson v. Jackson, 16 id. 382; Lion v. Burtiss, 20 id. 483; Trustees, etc., v. Kellogg, 16 N.Y. 86.)

It cannot consistently with the authorities be disputed but that the provisions creating the remainder in favor of the respective sons and charging them personally with the payment of a gross sum to each sister, upon the happening of the contingency referred to, indicate the intention of the testator that the remainder provided for should vest within the life of one of his sons, and upon the death of either without living issue. (Hughes v. Sayer, 1 P. Wms. 584.) Such was the view taken by the General Term, and we think it was correct. That court, however, reversed the judgment for plaintiff upon the ground that the last disposing clause was void on account of its repugnancy to the provisions devising the land to the sons: holding that an estate in fee simple was vested in each son, with the power of absolute disposition, and that the existence of such power defeated the provision disposing of the land upon the contingency of the death of either son without issue, whether it be regarded as creating a remainder or an executory devise. By the construction thus given, the provisions contained in the last clause are wholly obliterated, and all effect whatever is denied to them. Since the adoption of the provisions of the Revised Statutes relating to powers and estates, it cannot we think be questioned but that devises like the one in question must, in cases to which they apply, be upheld as creating a valid contingent remainder. Those provisions are contained in sections 32 and 33, article 1, title 2, chapter 1, part 1, page 2178, 7th edition, entitled "Of Estates," and read as follows:

"No expectant estate shall be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseizin, forfeiture, surrender, merger or otherwise."

"§ 33. The last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner or by any act or means which the party creating shall in the creation thereof have provided for or authorized. Nor shall an expectant estate thus liable to be defeated be on that ground adjudged void in its creation."

Sections 81 and 82 of article 3, same title, chapter and part, relating to powers, confirm the provisions referred to.

Considering the conflict then existing in the reported cases as to the validity of such devises, it seems difficult to resist the conviction that these provisions were adopted as declaratory of the existing rule, as well as intended to govern future controversies.

The questions in this case, however, are to be determined upon the law as it stood previous to the revision of the statutes, inasmuch as the rights of the parties were fixed before that time by the death of Jellis Fonda. It cannot be disputed but that there is some authority to sustain the conclusion reached by the General Term, but I have found no case decided in the court of last resort in this State within the last fifty years, where the rule claimed, has been followed. The question has been frequently up during that time, and the validity of such a provision has been uniformly sustained, although the authorities supporting a contrary doctrine have not been expressly overruled. I think that reason and principle, as well as the weight of authority, sustain the doctrine of the later cases. The precise point of difference now existing in the cases is, whether a devise to one of a remainder in fee can be limited, upon a prior devise in fee, accompanied by an express power of disposition. (Norris v.Beyea, 13 N.Y. 273.) It seems to be universally conceded now, that a fee may be limited upon a fee by way of executory devise, but it has been claimed that this cannot be effected where an express power of disposition is given to the first taker, for the reason, as it is argued, that the remainder is destroyed, even as an executory devise, on account of the alleged repugnancy existing between the two. It is also now quite generally conceded that this claim cannot be supported upon principle, but is attempted to be upheld solely upon the ground of authority, and as a rule of property. (Shaw v. Ford, 7 Ch. D. 669.) It seems to me impossible to conceive of a rule of property, based upon a principle which has been the subject of so much controversy, and which has never, as we shall see from the authorities, commanded general acquiescence.

A brief allusion to the general course of the law upon this branch of the subject in England will assist in illustrating the argument. It has always been the doctrine of the common law that a remainder could not be limited upon a fee. This rule was predicated upon the presumed intention of the testator, it being argued that he had a certain interest in property to dispose of, and having devised that interest to one, there was nothing left for him to dispose of in favor of another. It followed that any attempt by the testator to create a remainder thereafter, was ineffectual and void — as being repugnant to the estate first devised. In order to overcome this difficulty, the doctrine of executory devises was originated, by which it was held that a devise inoperative at common law as a remainder, might be upheld as a gift of a future interest in property, to take effect upon the happening of some contingency, upon which the continuance of the prior estate was made to depend. Thus the doctrine of executory devises was intended to remove the objection arising out of an apparent repugnancy between the devise of a fee, and the creation of a future estate in the same property. This doctrine did not originally apply to personal property, it being held in the earlier cases, with respect to such property, that it was too transitory and unstable in its nature, to permit of the creation of future estates, and, therefore, the first devisee took the entire interest in it. In the course of time, however, the courts recognized the creation of future estates in personal property, and enforced them to a limited extent, but the rules by which their validity was determined were substantially different from those affecting devises of real estate. In fact, when both real and personal property was devised in the same language by the same instrument, it was held that the remainder created in the real estate was valid, while as to the personal property it was adjudged void as being repugnant to the prior estate. (Forth v. Chapman, 1 P. Wms. 663.)^* From this rule was derived the authority in this State to hold that devises of real estate, with power of disposition added to the grant of a fee, is fatal to an executory devise, and thus, by a curious misconception of authority, was evolved the doctrine that the necessity out of which executory devises were created in England — has here been made the efficient cause of their overthrow. There seems to be an irreconcilable conflict of authority on the question involved, and it would be a vain task to attempt to harmonize the views on this subject. In this contingency, there can be no guide to direct our steps, so sure and safe as that indicated by the concededly paramount rule which requires the intentions of the testator to be effectuated. In the absence of a controlling weight of authority, no motive exists for disregarding the requirements of reason and principle in the disposition of the question. Chief Justice MARSHALL, in a similar case, repeating the language of another eminent judge, said: "It has been said truly (3 Wils. 141) that cases on wills may guide us to general rules of construction; but unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills." (Smith v. Bell, 6 Pet. 68.)

It was stated by Chief Justice KENT in 1813 that Lord THURLOW had said there were then fifty-seven cases on this point, and he adds that we know they have greatly increased since then. The present number we should hardly attempt to enumerate, and it is sufficient to say that it is quite impracticable to cite or comment upon all of them, even in this State. Those principally relied upon by the respondent to support the judgment areJackson v. Bull (10 Johns. 19), and Jackson v. Robins (16 id. 537), and others subsequently determined upon their authority. These cases were decided mainly upon the authority ofThe Attorney-General v. Hall (Fitzgibbons, 314), andFlanders v. Clark (1 Vesey, 9), which were both, so far as any law established by them is concerned, relating exclusively to personal property, and the rules by which they were determined, were then wholly inapplicable to devises of real estate in England. (Anderson v. Jackson, 16 Johns. 409, citing Forth v. Chapman, 1 P. Wms. 663.) The theory upon which the cases of Bull and Robins were decided is tersely stated by the chancellor in Jackson v. Robins, at page 589, as follows: "We are obliged to say that an absolute ownership, or capacity to sell, in the first taker, and a vested right by way of executory devise in another, which cannot be affected by such alienation, are perfectly incompatible estates and repugnant to each other; and the latter is to be rejected as void."

The court seems to refer to this circumstance as indicating a difference between executory devises and remainders, whereas, in fact, an absolute estate in one and a repugnant devise to another is equally fatal in both cases, and no more so in one than the other. It is not, I think, the mere fact that the owner of the primary estate may alienate in fee the property devised, which renders the estate limited thereon repugnant and void, but it is whether the respective dispositions are irreconcilably repugnant, or the power of disposition given to the first taker has been actually executed, so that nothing remains for the limitation over to operate upon, that is fatal to both estates alike. It is difficult to see how any actual repugnancy exists in a devise of property which, upon certain contingencies, is to become absolute in the first taker, and in the absence of such contingencies, is to go to another. (Trustees, etc., of Auburn v. Kellogg,supra.) The only effect of such a devise, reasonably construed, is to limit the interest which the first devisee takes, and such a direction no more creates a repugnant estate or infringes the statutes governing the descent and distribution of property than a devise of a life estate with power of disposition would do; and yet such devises have always been held good. (Shaw v. Ford, 7 Ch. D. 669; Kelley v. Meins, 135 Mass. 231; Wead v. Gray,8 Mo. App. 515.) Such statutes operate only upon the interest which the possessor has in the property, and if he takes only a qualified interest, the statutes affect only such interest as the devisor has. I think the cases hereinafter cited, not only in England, but also in this State, show that it has never been a conceded rule, that a power of disposition given to the primary devisee of even real estate was necessarily fatal to a limitation over of the same property. In the case immediately preceding Jackson v. Bull, in the 10th of Johnson, the same court upheld a remainder limited upon a devise of an absolute estate. I refer to the case of Executors ofMoffat v. Strong (10 Johns. 17), where the testator, after giving specific parts of his real and personal property to his several sons, directed that the remainder should be valued and divided among themselves by mutual agreement. He then provided, "that if any of his sons should die without lawful issue, that then his or their parts, excepting a certain amount to his or their widow, should be divided equally among the surviving sons." The question arose over personal property, and it was held, KENT, Ch. J., delivering the opinion, that this was a good executory devise; that although the language of the first devise imported an absolute intent, yet the limitation over qualified it and gave the first devisee a life estate only. Decision to a similar effect was made in Anderson v. Jackson (16 Johns. 382), and in numerous other cases in this State. The principal cause for the conflict of authority upon the question under discussion arises from a disregard of the fundamental rule controlling the construction of wills, which requires effect to be given to the plainly expressed intention of the testator, when it is not inconsistent with some imperative rule of law. It is, of course, that a testator cannot legally create an estate which is forbidden by the policy of our law, or the provisions of our statutes, as for instance, an estate which suspends the power of alienation for a prohibited period, or offends the statute of perpetuities, or attempts a prohibited trust; but aside from such restrictions he has power to create any legal estate, and when his will clearly reveals his intention to do so, it is the duty of the court to uphold it. Giving full effect to the testator's intention does not authorize the enforcement of inconsistent and repugnant provisions any more now than formerly; but in order to lead to the rejection of any provision on that account, the inconsistency must be irreconcilable. (Van Nostrand v. Moore,52 N.Y. 12; Trustees of Auburn Seminary v. Kellogg, 16 id. 85; Van Vechten v. Keator, 63 id. 52.) Notwithstanding the uniformity and frequency with which courts have from the earliest times laid down the imperative obligation of the rule requiring wills to be construed so as to effectuate the intention of the testator, in the application of it, they have often given greater effect to inferences drawn from technical language used in some parts of the instrument, than has been accorded to the most explicit requirements, to a contrary effect, contained in others.

The correct application of the rule forbids that greater force should be ascribed to the language used in one portion of a will than to that contained in another, or that words used in creating one estate, should be held to override other provisions expressed with equal clearness and apparent deliberation. (Smith v.Bell, 6 Pet. 68; Hoppock v. Tucker, 59 N.Y. 208.) If, under the pretense of following the intention of the testator, courts can adopt an arbitrary and illogical rule of construction which violates his plainest instructions, there would seem to be but little left of the rule so universally conceded. Notwithstanding the constant repetition of this rule by courts and elementary writers, a notion seems still to be entertained that certain forms of expression employed in a will nullify clearly expressed intentions contained in other portions of the instrument. To correct this erroneous impression it has been thought proper to refer to some of the expressions employed in the authorities upon the subject.

In Mann v. Mann, 14 Johns 9, THOMPSON, Ch. J., said: "That the intention of the testator is to be sought after and carried into effect, and that such intention is to be collected from the will itself, * * * are general rules so well settled that they may be assumed as elementary principles of law. * * * In examining into the intention of the testator in any particular clause of his will, it is no doubt proper to gather all of the light that can be thrown upon it by comparing and explaining it with other parts of the will so as to make the whole consistent, and all of the provisions harmonize together."

It is said in Williams on Executors, 926, to have been the rule in the English courts that "when the intention of the testator is plain, it will be allowed to control the legal operation of words, however technical." Many ancient authorities are cited. At page 928 he says: "Hence general words in one part of a will may be restrained in cases where it can be collected from any other part of the will that the testator did not mean to use them in their general sense." In Bean v. Holley (5 T.R. 5), it was held that courts "will give effect to the devisor's general intent, although they may thereby defeat a particular devise."

ALLEN, J., in Terry v. Wiggins (47 N.Y. 518) declared that "there is no repugnancy in a general devise to one person in terms which would ordinarily convey a whole estate, and a subsequent provision giving the same estate to another person on the happening of a contingent event." ANDREWS, J., in Taggart v. Murray (53 N.Y. 236) said that "subsequent clauses in a will are not incompatible with or repugnant to prior clauses in the same instrument when they may take effect as qualifications of the latter without defeating the intention of the testator in making his prior gift." In Norris v. Beyea (13 N.Y. 273), Judge DENIO contemplates the question which arises here, for he said: "When, after a devise or bequest in language denoting an absolute gift of the whole estate in fee, there is in a subsequent part of the same will a limitation over in the event of the first devisee dying under age and without issue, the gifts are not repugnant to each other, but the latter is a valid executory gift." The correct rule of construction I apprehend to be as stated by Lord BROUGHAM and expressed in the head-note ofThornhill v. Hall (2 Clarke Fin. 22): "It is a rule in construing written instruments that when an interest is given or an estate conveyed in one clause in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor be inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that interest or estate."

These decisions tend to show that it cannot be regarded as conclusive evidence of a testator's intent not to create an estate in remainder in one person, that he has previously devised an interest in the same property to another, which, regarded alone, might confer an absolute estate. If the devise of an apparent estate in fee may be limited and cut down by subsequent devises tending to create a remainder, it is difficult to see why the addition of a mere power should render it any more difficult for the court to carry out a plainly expressed intention of the testator. The devise of a fee-simple in property always carries with it, as one of its necessary attributes, an absolute power of disposition, and the addition thereto of express words conferring the same power cannot logically enlarge the estate. But assuming that such a distinction has been recognized in authorities, we shall refer to those which in legal effect not only ignore and discredit such a distinction, but to others holding that such a power, although expressly conferred, has not been deemed fatal to a limitation over.

Some of the cases in our courts where, under the operation of the rule referred to, it has been held that subsequent words of limitation creating a remainder controlled the apparent import of a prior devise, which, in the absence of such words, would have given an estate in fee, are those of Heard v. Horton 1 Den. 165); Norris v. Beyea (supra); Tyson v. Blake (22 N.Y. 558) ; Taggart v. Murray (supra); Buel v. Southwick (70 N.Y. 581). (See, also, Collins v. Collins, 40 Ohio, 355;Woodman v. Madigan, 58 N.H. 6; Barnitz v. Casey, 7 Cranch, 456; Moffat's Ex'rs v. Strong, supra; Anderson v.Jackson, supra.) Campbell v. Beaumont (91 N.Y. 465), has been referred to as holding a contrary doctrine, but I do not so regard it. It was there held that the language used by the testator did not clearly indicate his intention to create a remainder. Neither can Patterson v. Ellis (11 Wend. 259), be considered an authority upon the question for the reasons stated in Norris v. Beyea (supra). We now refer to some of the cases holding that the addition of words to a fee, giving express or implied power of disposition, is not fatal to an executory devise. In Adams v. Beekman (1 Paige, 631), the chancellor, in 1829, upheld an estate, limited upon a prior devise in fee with implied power of disposition. (See, also, Bradhurst v. Bradhurst, 1 Paige, 331.) That of Trustees of AuburnSeminary v. Kellogg (16 N.Y. 83), arose over a will made previous to the Revised Statutes, which, after specific legacies, devised the remainder of the testator's estate, both real and personal, to his daughter Chloe, her heirs and assigns, forever, with power to her guardian to expend such part of the estate as he deemed necessary for the support, maintenance and education of the daughter during her minority, and if she should die without lawful issue, remainder over to the amount of $10,000 to the Theological Seminary of Auburn. It was held that the words "dying without lawful issue" did not mean an indefinite failure of issue, but issue living at the death of the daughter, and that the power of disposition, connected with such devise to the daughter, did not render the attempted remainder inoperative as being repugnant thereto, but constituted a good executory gift. In Terry v. Wiggins (47 N.Y. 512), a testator, after bequeathing certain real estate to his wife for "her sole and absolute use and disposal," made a further bequest to her of all his other real and personal estate and effects "for her own personal and independent use and maintenance, with full power to sell and otherwise dispose of the same if she should require it, or deem it expedient to do so," and after her decease, remainder over of the residue of his real and personal estate to the Congregational Society of Greenport. The controversy arose over lands devised under the last clause of the will. It was held that the wife took only a life estate in such lands with a qualified power of disposition, and that the remainder was not repugnant to such interest. ALLEN, J., says: "By the will, the wife took an estate for life, for the residue, with remainder over at her death to the religious society, with power in the wife during the continuance of the life estate to defeat the remainder by an act authorized by the testator, to-wit, a valid disposal of the subject-matter of the devise. Whether this would have been a good executory devise at common law is not material. The party taking under the will has died without having disposed of the property, and the event has happened upon which, by the terms of the will, the limitation over was to take effect." InSmith v. Van Ostrand (64 N.Y. 278), it was held that a bequest to the testator's wife of money to the amount of $1,650, in lieu of dower, with power to apply so much of the principal as might be necessary for her support, with remainder in the residue to his children, did not render the bequest over void as being repugnant to the prior devise, and that upon the death of the widow the children were entitled to so much of the principal as remained. In Wager v. Wager (96 N.Y. 164), after making certain specific legacies the testator devised the remainder of his real and personal property to his daughter, but in case of her death, leaving no issue, before the death of his wife, then all the property, both real and personal, that shall be left by the daughter, to his wife, her heirs and assigns, forever. It was held that although the language "shall be left" imported a power of disposition in the daughter, that the remainder attempted to be provided for the wife was valid and should be upheld. It would seem from these cases that this court at least is unequivocally committed to the principle upholding the validity of this devise.Smith v. Bell (6 Peters, 68) seems to involve the same principle and lends the authority of the Supreme Court of the United States to the doctrine laid down in the later cases of this State. The will gave all of the testator's personal estate to his wife "for her own use, benefit, and disposal absolutely, with remainder after her decease" to his son. Chief Justice MARSHALL delivering the opinion, the remainder was held good. This case has been cited with approval in that court in 3 Otto, 333, and 8 id. 324.

It will be observed from the New York cases cited that no substantial distinction has ever been made here between personal and real property, with respect to the language from which the testator's intention is to be inferred. (4 Kent's Com. 283.) But in England this has been otherwise, and a failure to observe it was the occasion of the departure from principle in this State.

An examination of the English cases shows the same conflict there as here. (Shaw v. Ford, 7 Ch. D. 669; Gulliver v.Vaux, 8 De G., M. G. 167; Holmes v. Godson, id. 153.) I think, however, the weight of authority there is in favor of the validity of such a devise.

When it was finally held that an estate in expectancy could be created in personal property (2 Blackst. Com. [11th ed.] 398) slight circumstances indicating an intention on the part of the testator to give to the first devisee the power of enjoying and disposing of it were considered sufficient to defeat any attempted remainder thereof. We shall, however, see as to real estate a different rule obtained (Byng v. Lord Strafford, 5 Beavan, 558; Perry v. Merritt, 18 Exch. 152), holding with respect to devises of such property, that a remainder in fee could be limited upon a fee, by way of executory devise, although the will in terms implied an intention to give to the devisee of the particular estate an absolute interest, with express power of disposition. (2 Blackst. Com. [11th ed.] 164; Bibbens v.Potter, 10 Ch. D. 733; Constable v. Bull, 3 De Gex Sm. 413; In re Stringer's Est., 6 Ch. D. 1.) Blackstone states the rule to be that a fee-simple or other lesser estate in real property may be limited on a fee-simple, by way of executory devise, although such a disposition would not be valid, at common law, as a remainder; but this was not so as to personal property. (1 Chit. Blackst., part 2, 319.) This proposition remains unchanged through each edition of his Commentaries.

In the early and leading case of Pells v. Brown, decided by King's Bench, 1600, and reported Croke Jac. 590, there was a devise of land to "Thomas, his son, and his heirs forever," "and if Thomas died without issue, living, William, his brother, that then William, his brother, should have those lands to him and his heirs assigns forever." It was held that Thomas took an estate in fee in the land, but that a limitation of a fee upon a fee was valid as an executory devise, and that Thomas having died without issue, although he had suffered a common recovery, it was adjudged a good devise to William. To similar effect is the case of Porter v. Bradly (3 Term Rep. 143), decided in King's Bench about 1790, the opinions being delivered by KENYON, Ch. J., and ASHURST and GROSE, JJ. In Beachcroft v.Broome (4 Term Rep. 441), it was held, in 1793, that under a devise to A. and his heirs, but if he died without settling or disposing of the same, or without issue, then over, that A. could defeat the limitation over only by settling or disposing of the estate during his life-time. In Doe v. Glover (1 Manning, Granger Scott, 448) decided by the Court of Common Pleas in 1845, the head-note reads as follows: "A. devised his copyhold and real estate to B., his heirs and assigns, but in case B. shall depart this life without leaving any issue of his body lawfully begotten then living, or being no such issue, and B. shall not have disposed and parted with his interest of, in and to the said copyhold estate, then he devised the same unto and to the use of C., her heirs and assigns. Held, that the limitation over to C. was valid and took effect on the death of B. without issue, and without having parted with his interest by surrender or by deed in his life-time." The opinions delivered by Chief Justice TINDAL and Justice COLTMAN, CRESSWELL and ERLE support the rule expressed in the note.

This case was also similar to the present in respect to the devise of a life estate to the testator's wife preceding the devise to B. TINDAL, Ch. J., says: "This case appears to me not to fall within the doctrine * * * that it is in the nature of a condition that is repugnant to and incompatible with the prior absolute gift." "Strictly and properly it is an executory devise cutting down the interest which the son was to take upon the happening of certain events which have happened; the only question, therefore, for our consideration is what was the intention of the testator." (See Upwell v. Halsey, 1 P. Wms. 651.) The most recent case that has come under our observation, sustaining the validity of such a devise, is that of Bibbens v.Potter (supra).

It would seem to follow from the authorities referred to that Douw Fonda upon the death of his mother took a conditional fee in the fourteen acres of land, subject to be defeated by the execution of the power, or his death with issue. I think that, the testator having by clear, apt and technical words expressed an intention to create a remainder upon the termination of the particular estate, and such remainder not contravening any rule of law, it is the imperative duty of the court to give effect to such intention.

The provisions of the will in question affecting this subject, collocated and paraphrased, according to their legal effect, would read as follows: I give and bequeath to my said wife fourteen acres of land to hold during her natural life, and after her decease I give the same to my son Douw to hold to him, his heirs and assigns forever, provided he has lawful issue living at his death, and if he dies seized of the same without lawful issue, then to my son Henry.

Upon such a will no doubt could arise over the meaning of the testator in employing the words "heirs and assigns" in the devise to Douw, or but that he meant simply to describe the interest to be taken by Douw in case the contingency provided for the defeat of his estate did not occur, nor but that he intended by the use of the term "dying without lawful issue" to exclude Douw's devisees and collateral heirs from any interest in the property devised. Such an estate would confer no unlimited power of disposition on the devisee, and his interest determines by the happening of the contingency upon which the title is made by the will to depend. (Gilman v. Reddington, 24 N.Y. 16; Bouvier's Institutes, § 1699.) The language of this will, after a consideration of all of its provisions, seems to me clearly to import an intention on the part of the testator to confer only a conditional estate by the first devise, and by this construction effect is given to all of its provisions.

It is not contended that there is any language which expressly confers upon the sons an unlimited power of disposition, but such a power is sought to be implied from the use of the phrase "shall die seized of" in describing the property with respect to which the remainder is created. It seems quite unsafe to give greater weight to such an implication in determining the intention of a party than to the clear, intelligible and express declaration of his wishes. I think, however, that if the use of the phrase "shall die seized of" indicated any power of disposition on the part of the first devisee, it was evidently a qualified power, for it assumes the retention of a part of the estate by such devisee until his death, and clearly intended to preclude him from exercising any power of disposition over it by way of testamentary devise. (Terry v. Wiggins, supra; Smith v. Van Ostrand, supra.)

The power indicated by this provision would not, in a proper sense, be an absolute power of disposition, and would not, therefore, be irreconcilably repugnant to the creation of a remainder dependent upon the particular estate. It adds nothing to the interest devised and operates only as a power which, like all other powers, expires through an omission to exercise it during its existence.

I am, therefore, of the opinion that the plaintiff took title to the fourteen acres under the remainder provided for in the will of her grandfather, Jellis Fonda, upon the death of Douw Fonda, in 1837.

It is further claimed by the respondents that they are entitled to hold these lands through an adverse possession extending from the year 1835 to the commencement of this action in 1873. A brief reference to the facts is important in the consideration of this question.

Jellis Fonda died in 1791. Jannettie Fonda, his wife, and the owner of the life estate, died before 1800. Henry V. Fonda died in 1804, leaving two children, Jane Van Horn, the plaintiff, and Jellis Fonda. Jellis Fonda, the son of Henry, died in 1825, intestate and childless. Douw Fonda died in 1837, also childless and intestate. Jane Van Horn intermarried with Abram Van Horn in 1810, and they lived together as husband and wife until 1871, when Abram Van Horn died. Abram Van Horn took possession of the fourteen acres in 1825, in right of his wife, with the consent and permission of Douw Fonda, and remained until 1835, when he was dispossessed by the defendants' remote grantors. The estate of Abram Van Horn, by virtue of his interest as the husband of Jane Van Horn, in the premises, was, in 1834, sold at public sale upon an execution issued on a judgment against him, and a redemption from such sale having been made by one McLaren, another judgment creditor of Abram Van Horn, the sheriff, in 1835, executed a deed of the premises to McLaren, under which he took and has ever since, through himself and his grantees, retained possession, claiming title thereunder.

It appears from the statement that Jane Fonda rested under the disability of coverture at all times from her dispossession in 1835 until about the time of the commencement of this action. The right to the possession of her lands, as the law stood at that time, was in her husband, and he alone could assert such right. The Revised Statutes (2 R.S. 306 [1st ed.], § 88), provide that if the party entitled to bring an action for real property is at the time the title first descended or accrued to her, a married woman, that the time limited for the commencement of an action, or making an entry upon such property, shall not be deemed to run so long as such disability shall continue. Her disability as a married woman continued until it was removed by section 5 of chapter 741 of the Laws of 1870. (Acker v. Acker, 81 N.Y. 143; Clarke v. Gibbons, 83 id. 107.)

There seems to be no reason why this statute does not apply to this case. It was held in Devyr v. Schaefer (55 N.Y. 446), that "no possession could be deemed adverse to a party who has not, at the time, the right of entry and possession."

Other objections might be taken to this defense, but the above is deemed conclusive. (Grout v. Townsend, 2 Hill, 554;Moore v. Jackson, 4 Wend. 58.)

It follows from these views that the order of the General Term should be reversed and judgment of the Special Term affirmed.

All concur for affirmance, except RUGER, Ch. J., dissenting.

^* This continued to be the rule of the English courts untilHolmes v. Godson was decided in 1856.