Mary J. Bennett and Others, Appellants, v. Andrew McLaughlin, Respondent

Mary J. Bennett and Others, Appellants, v. Andrew McLaughlin, Respondent. Second Department, March 6, 1908. Will — devise with precatory words — when devisee takes fee — ejectment. A devise of all the testator’s lands to his wife with the right to sell and dispose of all or any of the same as she may deem proper “ and for the best interest of our children and lastly if anything is left it is my desire that she shall divide / the same between our children as she in her good judgment may consider just and fair ” is a devise to the wife in fee. The final words do not reduce the estate to one for life, or make the wife trustee for the children. The expression of the testator’s wish that if anything be left the devisee shall divide it among the children, does not mean that if she do not dispose of the property by deed of conveyance it shall go to the children on her death, and they are not entitled to maintain ejectment against the devisee of the widow. Appeal by the plaintiffs, Mary J. Bennett and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of March, 190.7, upon the decision of the court rendered after a trial at the Westchester Trial Term, both parties having moved for the direction of a verdict, with notice of an intention to bring up for review an order dated the 29th day of January, 1907 and entered in said clerk’s office, denying the plaintiffs’ motion for a new trial made upon the minutes. The action is in ejectment. The plaintiffs are the heirs at law of their father, John Murphy, who left a will devising his property as follows: “ After all my lawful debts are paid and discharged, I give, devise and bequeath to Ann Murphy my wife for her industry and good management of our domestic affairs all my property both real and personal of all and every kind wherever the same may be and all and every kind of interest claim or demand which I now have or may hereafter have or may arise after my decease and I desire that, my said wife at my decease shall take my place and shall have the right to sell and dispose of all or any of my real or personal estate as she may deem proper and for the best interest of our children and lastly if anything is left, it is my desire that she shall divide the same between our children as she in her good judgment may consider just and fair.” The said wife left a will devising the land in question to the defendant. W. Tazewell Fox, for the appellants. James Dempsey, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The devise to the wife was in fee. It is in clear terms, and the later words do not cut it down. They could not do so' unless they manifest that clear intention. It would not suffice that they raise a doubt on the question. The later words of the right of the wife to sell “as she may deem proper and for the best interest of our children ”, do not reduce her estate to one for life or make her the trustee of the children. The expression of the testator’s wish that if anything be left that she shall divide it among the children does not annex a condition to the devise that if the devisee do not dispose of the property by deed of conveyance it shall go to the children on her death. ■ The' words fall much short thereof (Campbell v. Beaumont, 91 N. Y. 465 ; Banzer v. Banzer, 156 id. 429 ; Foose v. Whitmore, 82 id. 405; Post v. Moore, 181 id. 15). The judgment should be affirmed. Jenks, ITookeb, Rich and Milleb, JJ., concurred. Judgment affirmed, with costs.