Webel v. Kelly

Houghton, J.

(concurring):

I arii of the -opinion that the plaintiff has an absolute, title to the premises in controversy. . .

He was thirteen years of age when his adopted father made the will in question. The dominant idea running through the will is that- the plaintiff should be cared for by the executor named until he should arrive at the age of twenty-five years, and that if he died prior to that time without issue, then that the property should go elsewhere." ■

The .will is in artificially drawn and Words are used quite regard- - ,less of their meaning. It is "true that it prqvides -that the premises Ho. 35 West Forty-third street shall not be sold during the lifetime of the'plaintiff, but following that provision aiiu in a new sentence beginning “Hext,” it is provided that'l on the arriyal of my said, adopted son at the age of twenty-five years, I direct my said execu*525tor to convey all my real estate I, may so own unsold, and all securities and other property, moneys, principal and interest, to my said . adopted son, to be held by him as follows.” Little significance, it seems to me, should be given to the words to be held by him as follows,” for nothing follows as to 'the manner in which lie shall hold, but only a further clause of the will, denominated “Fourth.” The direction to the executor to convey of course' is equivalent-to an absolute devise of the real estate and gift of securities. In the "4th clause it is provided that in case the plaintiff shall die before the testator’s death, “ or in case of his so departing this life after my death, without leaving lawful issue,”, then all real and personal property is given over to the children of .a deceased brother. But directly following the statement that they shall s'o take per stirpes, and not per capita, is the language, “ and in case of the death of my said adopted son before the age of twenty-five years, without such issue, I hereby- make it a part- of the trust that my executor shall see this last provision of my will carried into effect and convey said property above named to my said nephews and niece.” This language indicates that the testator meant that the property should so pass to his nephews and niece in case the plaintiff should die without issue before he arrived at the age of twenty-five years, and meaut nothing more. The language last quoted is the last used by the testator on that subject, and is in accordance with the last provision of the 3d paragraph of the will.

It seems to me, too, that considerable significance should be given to the direction to the executor to “convey” to the nephews and niece. The executor was commanded to look after the property and pay the income to the plaintiff until he should arrive at the age of twenty-five years. The testator assumed that his executor, whom he also made testamentary guardian of the plaintiff, would live until that time arrived ; but it is quite improbable that he also considered that his executor would outlive the plaintiff, and so be able to know whether he died without issue and thereby be in position to convey the real property to the substituted devisees,.and turn over to them the personal property which had originally come to his hands. s

, The construction to be given to the will involves the title to the entire estate as well as to the premises in question-, and neither the *526executor of tile, will nor the substituted, legatees are parties hereto. It would be much more satisfactory to construe the will in a direct proceeding for that purpose, in which all-persons interested should, be made parties: and be heard as to their respective rights. ■

• However, I agree that there- is a. doubt concerning-, the plaintiff’s title, and that the défendant ought not to be compelled to 'specifically. perform, -an’dj therefore, concur in an affirmance of. the .judgment. • ■ ■ " .

McLaughlin, J., concurred.

Judgment affirmed, with costs.