While we agree with the learned Appellate Division in the construction of the will of the testator, Warren Newcomb, there is a fatal objection to the plaintiff's maintenance of the action which lies back of the construction of the will, and in reality renders a discussion of that question unnecessary. "It is a settled principle of law that the legal rights of the heir or distributee, to the property of deceased persons, cannot be defeated except by a valid devise of such property to other persons. * * * It was not sufficient to deprive an heir-at-law or distributee of what comes to him by operation of law, as property not effectually disposed of by will, that the testator should have signified his intention by his will that his heir or distributee should not inherit any part of his estate." (Haxtun v. Corse, 2 Barb. Ch. 506, 521; Chamberlain v. Taylor,105 N.Y. 185, 194; Gallagher v. Crooks, 132 N.Y. 338, 342;Pickering v. Lord Stamford, 3 Vesey, 492, 493; Johnson v.Johnson, 4 Beavan, 318; Fitch v. Weber, 6 Hare, 145; Denn v. Gaskin, Cowper, 657, 661.) Therefore, if the will made no disposition of the remainder in the trust fund for the benefit of the testator's widow, it follows that the testator died intestate as to such remainder; that such interest passed as undisposed of property to his widow and to his daughter, and that on the death of the daughter, under subdivision 8 of section 2732 of the Code of Civil Procedure, her interest passed to her mother, the testator's widow. Hence, under no circumstances could the appellants claim any right to his estate.
The judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, O'BRIEN, MARTIN and VANN, JJ., concur; HAIGHT, J., absent.
Judgment affirmed. *Page 76