Opinion
Argued March 12, 1890
Decided April 15, 1890
Wm. Henry Arnaux for appellant. Edward S. Clinch for respondents.
I think the testator died possessed of the Thirty-ninth street lots within the meaning of the language of the fifth clause of his will, and that such lots were not the subject of litigation at the time of his death.
(1) As to the meaning of the testator when he used the language, "should I not die possessed of" this property.
He was engaged in making provision for his children by his will, and the character of his title to the property in question was of course known to and recognized by him. He had already made specific devises of property to his two sons by prior clauses in his will, and the two clauses which followed the fifth contained provisions for his other daughters, and this fifth clause is the sole one in which any specific devise is made to his daughter, the defendant Mrs. Withington. At the time of making the will the action of ejectment of Carnes v. Platt was pending, and it involved the possession of the Thirty-ninth street property. It was brought for the sole purpose of obtaining such possession, and it was the only action in existence which did involve it. Under such a state of facts, it seems to me that the most natural meaning of his language as to his not dying possessed of the land is that he was then alluding to the contingency of defeat in the Carnes ejectment suit, and to the dispossession which would necessarily follow such defeat. The words "possessed of" in the clause quoted do imply (as I assume, and as the learned judge at General Term said) that the testator should be "possessed of as owner," and not simply have a manual possession. But I do not think it meant that he was to be possessed of the whole of the property as between himself and his brother, but that he was to be possessed of it as owner as between himself and the plaintiff in the ejectment suit.
That it was his title as between himself and that plaintiff which he was bearing in mind is strengthened by the language which follows, for he says if he should not die possessed of the property, or if it should then be the subject of litigation the alternative devise should come in force. He thus had in contemplation not only the adverse result of this Carnes suit before his death which would dispossess him of the land, but he was mindful of the fact that his death might occur before the termination of the suit which involved such possession, and in such case the other property was given, for otherwise the suit might terminate adversely to the rights of his estate after his death, and in that event his gift of the property to his daughter would be fruitless. Some little light is perhaps thrown upon this language by the further fact that after the Carnes ejectment suit had finally terminated in his favor, so that his possession was in no danger from that source, the testator sold the land in Potter county, Pennsylvania, which would have gone to Mrs. Withington under the provisions of the fifth clause in case he did not die in possession of the Thirty-ninth street lots.
It may be plausibly argued that the testator, when he sold the land in Pennsylvania, knew that he was in possession of the Thirty-ninth street lots as against the Carnes claim which he had succeeded in defeating, and that as the case then stood his devise of those lots to Mrs. Withington would take effect, upon his death, and he might, therefore, properly sell the land in Pennsylvania without making any alteration in his will The force of the argument lies in the implied construction given by the testator to his own language, and the implication is based upon the assumption that if he had construed his language to mean that if he did not die possessed of these lots as sole owner as between himself and his brother's representatives, that in such case the alternative devise would take effect, he would not, in that event, have sold the Pennsylvania land and thus rendered such devise worthless, or else he would have altered his will. It is not a very strong argument I admit, because men frequently neglect to alter their wills when a change of circumstances has rendered such alteration imperative in order to accomplish the purposes, which it may be evident from a perusal of the will the testator had in view at the time of its execution. But whatever weight it has is in favor of the construction I have given of this language. From the facts already alluded to, however, it seems quite clear to me that it was not a possession as owner as against the claims of his brother's representatives which the testator had in view when he used this language, but it was possession as owner as against the claim set forth in the Carnes suit. It seems also that none of the parties to this action thought at the time when it was commenced that the testator George W. Platt did not die possessed of this Thirty-ninth street property, for, in the complaint herein, the only ground upon which it is claimed that Mrs. Withington lost the land is that it was the subject of litigation at the time of the testator's death. The defendants Henry M. and George W. Platt, by their answer, also set up as the only ground for their claim of a one-tenth interest in the property that at the time of the testator's death it was the subject of litigation. The surviving executors of the will of George W. Platt, by their answer, set up the same fact as the only basis for the claim of the other children to any share in this property.
The claim that the testator did not die possessed of the property is evidently an after-thought on the part of these defendants, and we do not think it is well founded.
(2) As to the testator's meaning when he said in the same fifth clause, "should the property be the subject of litigation at the time" of his death. Was it the subject of litigation within that language? The Carnes suit, although commenced before he made his will, was still in existence at the time when his will was executed, and had ended in December, 1876, years before the death of the testator, and the only suit that was pending at his death was that of the executors of Platt v. Platt. So far as the Thirty-ninth street lots are concerned, I am clearly of the opinion that they were not the subject of litigation in the last named action. There was no contest over those lots inaugurated or carried on by that action. The complaint referred to certain conveyances from Nathan C. to Geo. W. Platt, and asked to have them set aside, but there was no conveyance of these lots from Nathan to Geo. W., nor was any claim ever made that the lots were other than partnership property, or that Geo. W. had any other than a half interest therein, and this half interest was admitted or conceded by the brother's representatives, and no issue or contest in any manner whatever was raised or stated in regard to these lots as between the parties in the Platt litigation. But as to the Patty farm, the case was entirely different. There was a conveyance of that farm from Nathan C. to Geo. W. Platt, and the complaint, in the case of Platt v. Platt, asked for judgment setting such conveyance aside.
The Platt case was not finished when Geo. W. Platt died, and hence it is entirely plain that the Patty farm was the subject of litigation at the time of his death.
The distinction between the two cases, that of the Thirty-ninth street lots, and the Patty farm, is, therefore, obvious. There is no inconsistency that I can see in holding that the case of Platt v. Platt is the litigation referred to by the testator when speaking of the Patty farm, and that he does not refer to it when he is speaking of the litigation regarding the Thirty-ninth street lots. The inconsistency does not exist, because the Patty farm was one of the subjects of litigation in the case of Platt v. Platt, while the Thirty-ninth street lots were not the subject of litigation in that case at any time or for any purpose. There was an accounting in the Platt case of the rents and profits received from the Thirty-ninth street lots, and of the disbursements made by Geo. W. Platt in relation thereto. That was made in order to have a general accounting of the affairs of the late firm. But it cannot be properly said that a piece of real estate is the subject of litigation between parties, where the only question between them in regard to it is an accounting for the rents and profits received by one of them.
I think that, at the time of the death of Geo. W. Platt, he was possessed of the Thirty-ninth street lots, and that they were not then the subject of litigation, and hence Mrs. Withington took the undivided one-half interest therein, of which her father died seized, by virtue of the fifth clause in his will. It follows, of course, that the defendants Henry M. and George W. Platt, and Mary N. Todd and Eliza Ann Stoddard are not, nor is either of them, entitled to any interest whatever in and to the Thirty-ninth street lots.
The judgment should, therefore, be reversed and judgment entered for Mrs. Withington accordingly, with costs to her to be paid by the defendants appearing and claiming under the will of the testator Geo. W. Platt, or by his executors out of his estate other than the land devised to Mrs. Withington.
All concur.
Judgment accordingly.