Opinion
January, 1905.
C.L. Hildreth, for plaintiff.
G.H. Hooker, for defendants Brown and others.
E.C. Emerson, for defendant Jacobs.
Brown, Carlisle Hugo, for defendant Albert Gragg.
Where by the terms of a will a devise or bequest is made to A., followed by a second provision that in case of the death of A., without issue, the property devised or bequeathed shall go to B., the "death without issue" referred to is death during the lifetime of the testator. This rule yields, however, if there are facts and circumstances which reasonably and fairly show a different intention.
Such facts and circumstances exist in the present case. Although by the second clause of his will Mr. Gragg bequeathed and devised absolutely the residue of his estate to his wife, Emma, by the fourth clause he provided that in case of the death of his said wife, without children, one-half the estate that he might leave her should be paid to his legal heirs.
This clause has no force if the death of his wife during the lifetime of the testator is intended. In such an event the legacy would lapse and the whole, not the half, of his residuary estate would be paid to his heirs or next of kin.
The language used in the fourth clause is also inconsistent with the claim that the testator intended a death during his lifetime. In that event the legacy lapsed and he left his wife nothing. He uses the words, however, "One-half of the estate that I may leave her." As he left her nothing unless she survived him this language can only mean a subsequent death of the wife without children.
The legacy given to his daughter is to be paid "after the decease" of the testator. Yet he directs his wife, not the executors, to make the payments. Obviously he contemplated that his wife would survive him. By her death, therefore, he had reference to a death after his own.
As Mrs. Gragg did die without children one-half of the estate went to the heirs of the deceased. As to the $1,000 legacy it was clearly a charge upon the land devised. Colvin v. Young, 81 Hun, 116; Towner v. Tooley, 38 Barb. 598; Harris v. Troup, 8 Paige Ch. 421. Although title to this legacy was at one time acquired by Mrs. Gragg there was no merger because there was never united in her the sole interest in the entire estate. Nor were any rights under this legacy barred by the Statute of Limitations. They would have been so barred except for the fact that interest was paid thereon until 1900.
Ordinarily such payments bind only the one making them or those thereafter succeeding him in title. As a general rule a payment of interest by Mrs. Gragg would prevent the running of the statute only as against herself and her property; not against the others having a vested interest in the same estate. Murdock v. Waterman, 145 N.Y. 55; Insurance Co. v. McNeeley, 166 Ill. 540.
It may well be, however, that in this case the payments were directed by the testator; that they were made by his wife in pursuance to these directions and would bind any one having any future interest. Yet, as it may be claimed that only the first ten payments were made by such direction, and that subsequent payments of interest were simply by way of damages for failure to comply therewith, I prefer to rest my decision on another proposition.
While I find no authority for it I am of the opinion that the rule does not apply where a contingent estate is created. In such a case convenience requires that the person entitled to the immediate estate should be considered the representative of all interests and that his acts should, to some extent at least, and except as limited by the Real Property Law, bind those who may possibly become interested later. This rule is applied where actions affecting real property are begun. In such cases those having merely future contingent interests are not necessary parties. Jones Mort. (5th ed.), § 1401; Wilt. Mort. Forec., § 150; Brevoort v. Buel, 70 N.Y. 136; Eagle Fire Ins. Co. v. Cammet, 2 Edw. Ch. 127; Nodine v. Greenfield, 7 Paige, 544.
The present owners of this legacy gained title through Mrs. Gragg. Their claims are limited by what hers might have been. It appears that at one time she received $525.40 from the personal estate of the deceased — the primary fund for the payment of this legacy — to apply on the same. She either so used it or should have done so. In either event neither she nor her representatives can be heard to say that this application was not properly made. It was her duty also to pay the interest on this legacy down to time of her death.
The amount thereof which may now be charged against the real estate, therefore, is only $474.60, with interest thereon from March 3, 1904.
Findings in accordance with this opinion may be prepared, and if not agreed upon will be settled upon proper notice.
Ordered accordingly.