Appeal from Special Term, New York County.
Action by Louis B. Hasbrouck, executor and trustee of Henry W. Bookstaver, against Mary B. Bookstaver and others, to construe the will. From the judgment ( 59 Misc. 99, 112 N.Y.Supp. 159), Mary B. Bookstaver and certain other defendants appeal. Modified and affirmed.
[114 N.Y.S. 950] Henry J. Wehle, for appellant Hasbrouck.
Edward W. S. Johnson, for other appellants.
Philip M. Brett, for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.
The plaintiff named as the sole executor in the last will and codicil of Henry W. Bookstaver, deceased, commenced this action for the construction of the will, to which all the beneficiaries therein named are parties, and, from the judgment of Special Term construing the will, the widow and daughter of the testator and the plaintiff appeal.
The testator died seised of a house and lot in the city of New York, in which he resided, and certain personal property in New York and Rhode Island. He died on September 21, 1907, leaving him surviving his widow, about 70 years of age, and a daughter 32 years of age, who was married and without issue. The value of the real property owned by the testator at the time of his death was about $85,000, subject to a mortgage of $15,000, and of the personal property, consisting of a leasehold and securities valued at about $28,000. His debts were about $8,000. By the first clause of the will the testator provides that a plot of ground with the buildings thereon in the state of Rhode Island purchased by him for and in the name of his wife be hers absolutely, free and clear from any claim whatever from any person or persons, the personal property therein to be a part of his personal estate. The second clause of the will then provides:
" I give, devise and bequeath all my property of every kind, whether real, personal or mixed, to my said beloved wife Mary B. Bookstaver, for her [114 N.Y.S. 951] use and behoof during her natural life, she to have absolute control and disposal of all the income to be derived therefrom and so much of the principal as she may deem necessary for her comfortable sustenance and support."
And the principal question is as to the estate that the testator's wife took in the testator's real and personal property under this provision of the will.
It seems to me that the devise of the real estate by this clause of the will gave to the widow a life estate. There are no words of inheritance connected with the devise, but he devised his real property to his wife " for her use and behoof during her natural life." That provision, standing alone, could not be construed as a devise of the fee. It expressly limited the estate devised to the widow to a use for life without words of inheritance, and the principle mainly relied on by the appellants, that, where a fee in real property is devised by a will, subsequent words of limitation inconsistent with the estate primarily granted will not be effective to limit the estate granted, has no application. The clause then continues:
" She to have absolute control and disposal of all the income to be derived therefrom."
This would simply express the right of the owner of the life estate to the income of the property during her life. There is nothing to indicate an intention to dispose of the income of the property ...