[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 136 Upon reading this will we can infer some conflict in the mind of the testator with respect to the ultimate disposition which he should make of his property. It was as to how he might benefit the persons named in the fifth clause, after his widow's death. He could have created, in terms, a life estate in his wife, with a remainder over in their favor, in which case there would be a certainty with respect to their interest; or he could have created a power of appointment in their favor with a like certainty; or he could take the course which he did, namely, of desiring that his wife should make them "her heirs." The mental conflict was not serious respecting the superior claims of his wife, as we seem clearly to see from the careful and elaborate provisions of his will; but it appears when we read his expressions of desire and of request, addressed to his wife respecting a disposition of the estate which he had given to her, and which she might well have heeded. What was the dominant intention of Mr. Clay in making his will as he did? To discover that we must take into consideration the whole scheme of the will and weigh the expressions which he has made use of, when defining the interest of his wife. Whether the will in question was drawn with the aid of a lawyer, or by a lay hand, we are not informed. The language is somewhat inartificial and, yet, it is so plain and emphatic as to leave little room for doubt in the mind, as to what was the principal purpose of the testator. His general scheme was to give everything to his wife upon his death, except the legacies which he gave by the third and fourth clauses. That was the simple plan which he, evidently, had in mind and the question is whether the disposition which he made, resulted in vesting in her the full beneficial interest *Page 139 in, and an absolute right of disposal of, the property; or whether, as the appellants claim, a trust was created with respect to that property, or a power of trust imperative in its nature. It is very earnestly and ably argued in behalf of the appellants that, by force of the last clause in the fifth paragraph of the will, while the widow took a legal estate in fee, it was subject, as to the real and personal property, to a trust, or to a power in trust, in favor of the persons and the classes of persons named therein, and they base the argument upon the proposition, substantially, that the provision is couched in such precatory words as to fulfill all the conditions named by the authorities as requisite to create a trust; in that the words used exclude any option or discretion in the wife and the subject of the request and the objects of the bounty are definitely pointed out. They argue, too, that the relations sustained by the persons named to the testator are such, and are shown by other parts of the will to be such, as to indicate a strong interest on his part to make the gift. If, however, the conclusion must be reached that the testator intended an absolute gift to his wife of his real and personal property, carrying with it an absolute right of disposal, then it will become unnecessary for us to consider questions of trust or of power in trust; for the existence of an absolute and beneficial estate in fee in the widow would be equally destructive of the claim of a trust, or of the claim of an imperative trust power.
The testator, it must be admitted, was very emphatic in the use of language, when defining the nature of the holding by his wife of the estate devised and bequeathed. When he gave to her the house and lot where he resided, he added the words, "and to her heirs and assigns forever." In the same paragraph, where he had so given her the house and lot and, also, all of his household goods and effects, he repeats that she was "to have and to hold the said house and lot to her * * * and to her heirs and assigns forever;" and he states with reference to the personal effects that she was to have and to hold them "unto her * * * and to her heirs, executors, administrators and assigns forever." This repetition *Page 140 of language, indicating completeness and perpetuity of ownership, arrests the attention. It will be observed, too, that there was discrimination in the employment of language defining her holding, in the use of words which would be appropriate in speaking of the succession to either class of property. He had been particular, in the first clause, to direct that, in the payment of his debts, the mortgage upon the house and lot should be discharged, and he was equally particular, in the promotion of the interests of his wife, in directing, in the fourth clause, that the legacies given should not be a charge upon either the house and lot, or the personal effects mentioned. When he disposes of his residuary estate, in the fifth clause, he is again emphatic in defining the estate which his wife shall take therein, by giving it to her "and to her heirs, executors, administrators and assigns forever." Again, in expressing his desire and request as to the disposition to be made by his wife, in that clause, he refers to "the said estate which by this will I have bequeathed to my said wife." It is hardly conceivable that the intention of a testator that his wife should have the absolute title to, and the completest right of disposal of the estate given, could be stated in more forcible language. The words which have been sometimes used, and which the counsel for the appellants think would be more appropriate to express the intention to make an absolute gift to the wife, such as "with full power of disposal," or "for her sole use and benefit," would not be any stronger and, indeed, would seem to be more appropriately used when providing for the case of a married woman and to protect her against her husband's acts. Where there is an absolute gift of real or personal property, in order to qualify it, or to cut it down, the latter part of the will should show an equally clear intention to do so, by the use of words definite in their meaning, and by expressions which must be regarded as imperative. That is a general rule and can it be said of the concluding clause of this fifth paragraph that it stands the test? We cannot think so. It undoubtedly contains the desire and request of the testator that his wife should make the persons *Page 141 named her "joint heirs" after death; but in view of the very emphatic and precise language, which he had seen fit to employ in defining the estate which his wife should take in his property, it would be going too far in the effort to give effect to the testator's desire to hold that it dominated his previous expressions of intention and affected their legal force and significance.
In Phillips v. Phillips (112 N.Y. 197), a case upon which much reliance is placed by the appellants, Judge FINCH observed of the testator's will, in the course of his opinion, "that in the gift to his wife he does not add words that could seem inconsistent with a subsequent charge upon it, as for her own use and benefit, or to her and her heirs forever, but leaves the path to a trust or a charge unobstructed so far as possible." That case differed from the present one, in that the testator "wished" his wife, who was his executrix, "if she finds it always convenient," to pay to his sister and brother during their lives the interest on $10,000. In that case there was no cutting down of his wife's fee to a life estate; but, it being seen that a gift was made, dependent only upon the fact of ability to do so, a precatory trust was deemed to have been created with respect to the annuities. The very words of distinction pointed out by Judge FINCH are present here. In the Matter of Gardner (140 N.Y. 122), the testator gave the residue of his estate to his wife, to have and to hold the same to her and her assigns forever; providing that what should remain unexpended, or undisposed of at her death, he gave to his son and his heirs. The testator added this clause: "And I expect and desire that my said wife will not dispose of my said estate by will in such a way that the whole that might remain at her death shall go out of my own family and blood relation." It was held that "the estate of the wife was not qualified by the precatory words mentioned" and that they were "merely the expression of an expectation or desire." The construction of a trust was refused by us; upon the ground that the words of the will in the first instance clearly indicated a disposition in the testator to give the entire interest, *Page 142 use and benefit to the donee. In In re Hamilton (L.R. [2 Chanc. Div. 1895] 370), which is relied upon in the prevailing opinion at the General Term, the following language is used: "I give, bequeath and appoint to my dear nieces * * * the sum of £ 2,000 apiece for their sole and separate use and to be independent of their husbands, and I wish them to bequeath the same equally between the families of my nephew Silver Oliver and my dear niece Mrs. Packenham in such mode as they shall consider right." It was held that the nieces took absolutely and a construction of the words was refused, which should imply that the ladies took for life only, instead of absolutely.
We are referred to many cases on the one side and on the other; but precedents in will cases are not very satisfactory aids in reaching a conclusion in the work of interpretation; for each will will differ in its scheme, as in its forms of expression. At most, they furnish illustrations of the application of those general rules of construction, which have been laid down in the decisions of the courts. Whether the precatory words in a will shall be accorded such force as to deprive the donee of the absolute right of disposal and, thereby, qualify the beneficial interest in the gift, must be determined in connection with what may be gathered from the rest of the will as an intention which would be reconcilable with the idea of a trust imposed upon the legal estate. Where to impose such a trust would be to nullify previous expressions in the will and to create a repugnancy between its different parts, then the rules of construction forbid the attempt, and this is not disputed by the appellants' counsel. Their contention in that respect is, that that principle of construction has no application to the present case; because of the absence of words showing that the wife was to have the whole beneficial interest. Thus we see that the pivotal point of construction is as to the significance of the expressions used by the testator, when giving his estate to his wife, and the inferences to be drawn therefrom. In our view, they are unmistakable and create an atmosphere about the instrument *Page 143 of an entire subjection of the claims of others upon his bounty to the paramount claim of his wife and to her ultimate testamentary disposition.
In the present case we can only read the language, in which the testator expresses his desire and request, in the light of the emphatic language previously used in the will and, as so read, award to it the force of a suggestion and of an expectation, which, however strongly phrased, were only morally binding upon the widow. Within the case of Colton v. Colton, (127 U.S. 300), where the testator gave to his wife all of the real and personal estate of which he should die seized, possessed or entitled to, with a recommendation to her as to the care and protection of his mother and sister, and with a request to her to make such gift and provision for them as in her judgment would be best, the present case might be said to be within the exception there recognized. It was there held that the language of the bequest was sufficient to convey to the testator's wife the whole estate absolutely, if it stood alone; but that, nevertheless, as it did not stand alone and did not "contain any expressions which necessarily anticipate or limit any subsequent provisions affecting it," the bequest was affected by the request. Precisely that did occur in the will under consideration, as we view it, and the language of the devise and bequest to the wife did contain such expressions as to anticipate and limit the possible effect of the subsequent provision. The cases of Dominick v.Sayre, (3 Sand. 555), and Smith v. Floyd, (140 N.Y. 337), related to devises for life; with a power, in the one case, and with a "right and privilege," in the other case, of disposal by will in favor of certain persons and we do not perceive how they affect the conclusions we have reached.
We have sufficiently expressed our views upon the questions presented by this appeal and they lead to an affirmance of the judgment.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 144