Mary Ann Hatch, individually and as Administratrix, etc., Appellant, v. John W. Bassett, Respondent

Mary Ann Hatch, individually and as Administratrix, etc., Appellant, v. John W. Bassett, Respondent. (Submitted February 21, 1873; decided April 1, 1873.) The will of EL, 1st. Directed Ms executors to sell all Ms real and personal estate; 3d. Gave to Ms wife an annuity of $175, payable yearly out of the rents and income of Ms estate so long as she remained his widow, provided she accepted the same in lieu of dower; 3d. Gave one-seventh of the residue of the balance of the rents and income to B.,upon certain trusts; and 4th. Directed all the balance of the rents and income to be equally divided amongst six legatees named. Upon a case submitted to obtain construction of the will, held,, that by the first clause there was an equitable conversion of the whole estate into personalty; that the last clause was an absolute gift of one-sixth of the remainder of the estate to "each of the legatees, and that the acceptance of the annuity only barred the widow’s claim to be endowed of the real estate, and did not affect her right to the personal property. Appeal from judgment of the General Term of the Supreme Court in the third judicial department, rendered upon a case submitted under section 372 of the Code. The submission was for the purpose of obtaining a construction of the last will and testament of Benjamin H. Hatch, late of Fort Edward, Washington county, deceased. - The following were the clauses under consideration : , “ First. After my death my executors, hereinafter named, shall sell at public or private sale, as they may deem best, all my personal and real estate. , “ Second. After the payment of my just and lawful debts I direct that $175 annually be paid to my wife, Mary Ann, out of the rents and incomes óf my estate, so long as she remains my widow; and provided, also, she receives and accepts that sum in lieu of dower. “Third. I give and bequeath' to John W. Bassett' one-seventh of the balance of the rents and incomes from my estate, if any, to be used by him at his discretion for the support and maintenance of my niece, Cerett South wick; or, .if in his judgment my sister, Calista Southwick, needs all or a portion of it for her support, I direct that it be so used.5 “ Fourth. I direct that all the balance of the rents and incomes from my estate be equally divided, share and share alike, among my sisters, Harriet Bassett, wife of John W.“ Bassett; Martha J. Melenda, wife of Alonzo Melenda; Eunice Murdock, wife of Henry Murdock; and Lucinda Hanford, wife of Jesse Hanford, and hay brothers, Bhineas E. Hatch and Bufos H. Hatch.” The beneficiaries named in the third clause both died before" the testator. The General Term decided “1st. That the bequest to John W. Bassett, in the third' clause of said will, lapsed, and .the testator died intestate as to that, for he only bequeathed the balance, and it should be' divided under the statute of distributions, and the widow have her share. “ 2d. The bequest to the brothers and sisters, in the fourth ' clause of said will, is absolute, and not accompanied with any suspension of ownership. Hughes & Northrwp for the apppellant. The bequest in . the second clause of the will did not deprive plaintiff of any' benefit she might be entitled to under the statute. (Vedder v. Saxton, 46 Barb., 188.) Testator died intestate as to all his property, except the bequest of $175 annually to the widow. ( Williams v. Conrad, 30 Barb., 524.) Boies c& Thomas for the respondent. A general gift of the income arising from real and personal property is equivalent to a general gift of the property itself. (Patterson v. Ellis, 11 Wend., 259, 298; Smith v. Post, 2 Edw., 523; Haig v. Swiney, 1 Sim. & Stu., 487.) When a will is susceptible of two constructions, one of which avoids and the other upholds, the latter must be adopted. (Mason v. Jones, 2 Barb., 229; Pond v. Berg, 10 Paige, 140; Butler v. Butler, 3 Barb. Ch., 304.) [MAJORITY — Grover, J.] Grover, J. The only appeal taken from the judgment is by th§ plaintiff from that part declaring the legacies given by the .fourth clause of the will absolute, unaccompanied by any suspension of ownership. This is the only question before the court. The testator, upon the judgment as given by the first clause, directs his executors to sell all his real and personal estate. This was an equitable conversion of the real into personal, and the entire estate must be regarded as personal. By the second clause he gave the plaintiff, his wife, an annuity of $175, payable yearly out of the rents and income of his estate, so long as she remained his widow, provided she received and accepted that sum in lieu of dower. The beneficiaries of the trust, specified in the third clause of the will, died in the lifetime of the testator. The legacy therein given lapsed. This clause has no longer any bearing upon the question presented by this appeal.' The fourth clause, the one in question, is as follows: “ Fourth. I direct that all the balance of the rents and income from my estate be equally divided, share and share alike, among my four sisters,” naming them, “ and my two brothers,” naming them. This is a gift to each brother and sister, either of the income arising from one-sixth of this residue for life, or a gift of one-sixth of the estate itself. In either case the legacy is valid. If the former be the true construction of the will, each of the legatees took the income of one-sixth for life only, and the corpus of the estate, after the death of each legatee, not having been -disposed of, the testator, as to this, died intestate, and it would be disposed of under the statute of distributions in like manner as any other personal estate undisposed of by the will. The absolute ownership was not suspended. The right to the income for their respective lives was in the legatees, and the right to the corpus, subject to this right of the legatees, was in the next of kin, and these two classes together were absolute owners of the property. But it was an absolute gift of one-sixth of this remainder to each legatee. A general gift of the income, arising from personal property, making no mention of the principal, is equivalent to a general gift of the property itself. (Patterson v. Ellis, 11 Wend., 260,. and cases cited in the. opinions; Haig v. Swiney, 1 Simons & Stuart, 487; Smith v. Post, 2 Edwards’ Ch., 583.) That is this case. The Supreme Court were right in holding that the legatees took the remainder absolutely under the clause of the will under consideration. The plaintiff now claims that the judgment is defective for want of a provision declaring her entitled to what is given her by section 2 of chap, 157, p, 194, Laws of 1842, notwithstanding her acceptance of the annuity given her by the second clause of the wjll. This .annuity was given in lieu of dower. Dower can only be had of real estate, and has no connection with personal. Her acceptance of the annuity only bars her claim to be endowed of the real estate, and will not at all affect her right, arising upon any statute or from any other source, to the personal. I think the reason why a provision to this effect was not made by the Supreme Court, was that it does not very clearly appear from the submission that any question as to this was made by any one. Upon an appeal from a part of the judgment, the appellant may insist that some further provision should, be inserted therein, the same as upon an appeal from the entire judgment. To avoid further litigation, it may be well to insert this provision, and, as thus modified, the judgment should be affirmed, without costs to either party; All concur. Judgment accordingly.