APPEAL by the defendants, Mary R. Washburn and another, as executors, etc., and Mary R. Washburn, individually, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 18th day of January, 1911, upon the decision of the court rendered after a trial at the New York Special Term.
Jacob Halstead, for the executors of estate of Emma J. McLeay, deceased, appellants.
William T. Washburn, for the appellant Mary R. Washburn, individually.
Arthur Garfield Hays, for the plaintiff.
Manfred W. Ehrich, for the respondents Thomas Turner and others.
This is an appeal from a judgment at Special Term requiring the defendants Mary R. Washburn and Joseph Walker, Jr., as executrix and executor of Emma Jane Richardson, deceased, to account to plaintiff and other heirs at law of Thomas W. McLeay, deceased, for the proceeds of the sale by the said Emma Jane Richardson, during her lifetime, of real estate formerly belonging to said Thomas W. McLeay, deceased, and for moneys paid to said Emma Jane Richardson, in her lifetime, by the city of New York for property taken in condemnation proceedings, and which formerly belonged to said Thomas W. McLeay.
There is no dispute as to the facts, and the only legal question involved is as to the construction to be given to the
will of said Thomas W. McLeay, who was the husband of said Emma Jane Richardson (she having contracted a second marriage), and who died in the year 1865, leaving a widow, but no children, father or mother. He also left one brother, four sisters and a number of nieces and nephews. His will, which we are called upon to construe, reads as follows:
'IN THE NAME OF GOD, AMEN.
'I, Thomas W. McLeay of the City of New York, of the age of years and upwards and being of sound mind and memory but aware of the uncertainty of life, do make, publish and declare this my last will and testament in manner following, that is to say:
' First. I give, bequeath and devise to my dearly beloved wife Emma Jane McLeay all my personal estate of every nature and kind and wheresoever situated to have and to hold to her own use forever.
'Second. I give, bequeath and devise all my real estate of what nature or kind soever, and wheresoever situated to my said wife, to be used and enjoyed by her during the term of her natural life, and from and immediately after her death one house and lot such as my said wife may choose and have designated in writing to Mary Rosenia Doughty, and to her heirs and assigns to have and to hold to her or their own use forever and all the rest and residue of my real estate or such parts or portions thereof as are not previously sold by my said wife to such of my brothers and sisters as shall be living at the time of her death share and share alike if more than one, and to their heirs and assigns to have and to hold to their own use forever; and I authorize and give my said wife hereinafter appointed executrix of this my last will, full power to sell and dispose of any or all of my real estate, at public or private sale, at such time or times and upon such terms and in such manner as to her shall seem meet and to give good and valid deeds therefor and I also give her as full power and authority to manage said real estate as I myself have, and I also authorize her, at her discretion, to give to any or all of my said brothers and sisters such sum or sums from the principal of my estate, as she shall deem best, or desire and I hereby appoint my said wife Emma Jane McLeay
sole executrix of this my last will and testament hereby revoking all former wills by me made.'
The widow qualified as executrix. She went into possession of the real estate and sold it all during her lifetime, except a parcel which was taken by the city of New York in a condemnation proceeding, and the award for which was paid to her. She never, in form, designated any house and lot to go to Mary Rosenia Doughty under the terms of her husband's will, but some years after she had sold all of the real estate she repurchased one of the houses and lots and then conveyed it, for a nominal consideration, to the said Mary Rosenia Doughty, then Mary Rosenia Washburn. This has been held by the judgment appealed from to have been an ineffectual attempt to exercise the power of appointment given by the will, and the executors are required to account for this house and lot, or its value, and for the rents thereof since the death of Emma Jane Richardson, deceased.
The appellants, executrix and executor of Emma Jane Richardson, deceased, contend that under her husband's will their testatrix took an estate in the real estate in fee simple absolute, subject, however, to the executory devise to the surviving brothers and sisters of so much of the real estate as to which she failed to exercise her power of disposition.
The respondents, on the other hand, contend (and so it was held at Special Term) that the said testatrix took only a life estate under the will, and that as to the proceeds of any real estate sold by her the testator, Thomas W. McLeay, died intestate. It is apparent upon the face of the will that the desire which was uppermost in the mind of the testator was that the whole management and disposition of the real estate should be left to his wife to deal with as she saw fit. To those members of his family who might survive her he left only what she might not see fit to dispose of in her lifetime. The main features of the will, so far as it concerns the real estate (with which alone we are now concerned), are: (1) The gift of a life estate to his wife; (2) the grant to her of ...