ÆäÀÌÁö À̹ÌÁö
PDF
ePub

intention. Furthermore, it should be construed in a manner which will give effect to every material word used within its bounds, if such a construction is not patently inconsistent with other parts of the contract or incompatible with the attendant circumstances or the subject-matter.

Great stress is placed by defendant upon the literal meaning of the word "extension." It is contended that the rear building is necessarily excluded from the purview of the policies by the etymological derivation of the word, supported by authoritative definitions thereof. We are not strongly impressed with the argument, but are rather of the opinion that the technical definition of the word as given in the authorities is of little, if any value, and affords but small assistance in determining its application to a particular structure such as appears in this controversy. Its meaning may be either widened or limited by reference to the other words of description, and must be subordinated to the purposes contemplated by the parties to the contract.

Nor do we see an insuperable objection to the plaintiff's contention in any alleged necessity of physical connection between the two structures. It is true that, in the great majority of cases where the question has been presented, there has been some physical connection between the principal building and the structure sought to be brought within the terms of the policy. But, in cases where the question has been discussed with reference to the similar expression "additions," the conclusion has been reached that it is not absolutely necessary that the structures be physically connected.

In Phenix Insurance Co. v. Martin (Miss.) 16 South. 417, it was held that a policy on a two-story brick building and additions thereto included an entirely separate and distinct building within the curtilage. To the same effect is Tate v. Jasper County Farmers' Mutual Insurance Co., 133 Mo. App. 584, 113 S. W. 659, which held that a detached building is an addition, within the description of a policy purporting to cover a dwelling and additions. See, also, Robinson v. Pennsylvania Insurance Co., 87 Me. 399, 32 Atl. 996; Pettit v. State Insurance Co., 41 Minn. 299, 43 N. W. 378.

In Rickerson v. Hartford Fire Insurance Co., 149 N. Y. 307, 43 N. E. 856, the circumstances, while not exactly similar to the case at bar, closely approached it. There the court construed the phrase "brick building and additions." In the front of the premises involved was a brick building, the main part of which was three stories high; in the rear, a five-story brick building. Between these two buildings was a stable one story high, the front wall of which was the rear wall of the front building and the rear wall of which was the front wall of the rear building. The buildings thus formed a continuous structure, extending from the street to the rear line of the lot, and, while there was no door between the stable and either building to the front or rear thereof, there was a window communicating with each. The stable and the rear part of the front building were not as wide as the lot, and this left an open space on the east side known as "the yard." The evidence showed further that there was an arched passage or alleyway under the east side of the front building on the ground floor, extending

(183 N.Y.S.)

from the street to the yard, with a door opening into the street. The only method of reaching the rear building was by entering this door, passing through the alleyway into the yard, and crossing over it into the rear building, which communicated with no street, except the front street, and had no outside doors, except those opening into the yard. The entire property, including both buildings, was known as No. 160 Mott street. In that case, as in the case at bar, the company had consulted its insurance map before issuing the policy, and learned that there were two buildings upon the property, the location of each, and that the same street number applied to both; "the fundamental, if not the controlling, part of the description." The fire had damaged the rear building upon the premises. The court in the course of its opinion, adopting a "broad and more liberal construction of the provision," as later said in Arlington v. Colonial Assurance Co. of New York, 180 N. Y. 337, 73 N. E. 34, and reversing the trial court, which had resolved the doubt in favor of the insurer, said:

"We thus have a policy which, if it had been read before the fire by a person standing upon the premises and familiar with the buildings and the way they were occupied, would leave him in doubt whether the property insured embraced all the buildings or only a part. For this ambiguity the company is responsible, because it prepared and executed the contract, and the language used is wholly its own. While it is the duty of the court to so construe the policy as, if possible, to give effect to every word used, if the sense in which they were used is uncertain and the meaning is ambiguous, that meaning should be given which is most favorable to the insured. [Cases cited.] As said by Mr. May, in his work on Insurance: 'No rule in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares that, in all cases, it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to the indemnity, which, in making the insurance it was his object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must, in preference, be adopted.'"

So in the instant case the defendant should not be permitted to complain if by its own preparation of a policy and the inclusion therein of a term susceptible of doubt, it has rendered doubtful what it possessed in its power to make explicit, viz. whether the property insured embraced both buildings or only one. Had it investigated

"it would have discovered the true location of the plaintiff's residence. Had it done so within a reasonable time, and had there been any basis for claiming it had been misled to its prejudice, it might have rescinded the contract and returned the premium." Le Gendre v. Scottish Union & National Insurance Co., 95 App. Div. 562, 88 N. Y. Supp. 1012.

We find further support for our conclusion in the observation that, if the rear structure were not intended, no other building can answer the description of "extension," and, giving to each word in the policy presumptively an importance of meaning, we are forced to find that either this word was a futile generality, without meaning, or that it was intended to be within the contract and to cover the building destroyed. In the one view, it must be treated as mere surplusage; in the other, it has vitality and indicates intention. We should assume, unless necessity otherwise compel, that the language used by parties was not intended to express an unintelligible idea, or that they vainly

183 N.Y.S.-5

and designedly employed language which could have no application or possible reference to the subject-matter at hand. The term being susceptible of reasonable construction, we should not ignore or reject it as a loose or immaterial expression.

Upon the facts of the case, we hold that in giving effect to the words "extension" as embracing the building damaged, we are interpreting the policy with full meaning ascribed to all its parts and without violence to the intention of the parties.

The judgment is therefore affirmed, with $25 costs. All concur.

(112 Misc. Rep. 502)

UNITED STATES TRUST CO. OF NEW YORK v. NATHAN et al. (Supreme Court, Special Term, New York County.

July 6, 1920.)

1. Wills 524 (6)—Gift in remainder on death of child without issue held to be to his descendants living at death of child.

Under will giving property in trust for each of testator's children, and providing that in case of death of one of them leaving no issue surviving, if testator's "wife shall not be then living, then I give and bequeath" the trust funds of such child "to my descendants," the gift in remainder is not to testator's descendants at the date of his death, but to his descendants at the date of the child's death, to which time the first "then" refers, especially as this construction harmonizes with the general scheme of the long will that testator's property shall not pass to strangers to his blood. 2. Wills 531 (2)—Gift in remainder to testator's descendants held per stirpes.

*

A gift in remainder to testator's descendants "according to the law of the state regulating distribution of personal property in case of intestacy" is per stirpes, and not per capita.

Action by the United States Trust Company of New York, as trustee under the will of Benjamin Nathan, deceased, against Harmon H. Nathan and others, to construe the seventeenth paragraph of decedent's will, and to pass the account of plaintiff. Will construed, and account settled and allowed.

Stewart & Shearer, of New York City (McCready Sykes, of New York City, of counsel), for plaintiff.

Rose & Paskus, of New York City (Lawrence S. Coit, of New York City, of counsel), for defendants Harmon and Julian Nathan.

Leventritt, Cook, Nathan & Lehman, of New York City (Harold Nathan, of New York City, of counsel), for defendants Maud and Harold Nathan, as executors of the will of Frederick Nathan.

Hays, Hershfield & Wolf, of New York City (Daniel P. Hays, of New York City, of counsel), for defendant Pennsylvania Co., etc., as sole surviving executor of the estate of Lucien Moss, deceased.

Goldsmith, Cohen, Cole & Weiss, of New York City (Robert E. Samuels, of New York City, of counsel), for defendants Arthur N. and John B. Wolff and Frances Wolff Cullman.

Sidney B. Cardozo, of New York City (Michael H. Cardozo, Jr., of New York City, of counsel), for guardian ad litem of infant defendants Cardozo.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(183 N.Y.S.)

Henry F. Wolff, of New York City, guardian ad litem, for infant defendants Wolff and Cullman.

Walter S. Newhouse, of New York City, guardian ad litem, for infant defendants Nathan.

Meyer M. Friend, of New York City, guardian ad litem, for infant defendants Peixotto and others.

GIEGERICH, J. The plaintiff trustee asks for a construction of one of the paragraphs of the will of its testator, Benjamin Nathan, who died in July, 1870, the will having been made in 1869. The portion of the will presented for construction, so far as it is necessary to quote it, reads as follows:

* *

*

"Seventeenth. I give and bequeath to the United States Trust Company of New York as many sums of seventy-five thousand dollars each as I shall leave daughters me surviving; and I also give and bequeath unto said company as many sums of seventy-five thousand dollars as I shall leave sons me surviving who are not included in the sixteenth article or clause of this my will: in trust to invest each of said sums of seventy-five thousand dollars separately according to its best discretion and to hold one of said sums so invested in trust for each of my children described in this article of my will. and to accumulate the interest or income thereon (of each share or trust fund separately) during their respective minorities. And in respect to the said trust funds for my daughters upon the further trust when any one of my daughters arrives at the age of twenty-one years (provided that be after my death) to pay over to such daughter to her sole and separate use, benefit and behoof, free from and in nowise to be subject to the debts, engagements, liabilities or control of her husband, all the accumulations of her said trust fund. And thereafter as respects any daughter so arriving at twenty-one years of age after my death and as respects each of my daughters who shall at the time of my death have attained the age of twenty-one years, from and upon the creation of the trust to collect and receive the rents, income, issues, interest, dividends and profits of the principal of her said trust funds and pay and apply the same from time to time, as collected and received, to the use of the daughter for whom the principal of said trust funds was set apart and invested, to her sole and separate use, benefit and behoof, free from and in nowise to be subject to the debts, engagements, liabilities or control of any husband (and without any power of anticipation on her part) during the term of her natural life. And I declare it to be my further will and intent that in case of and upon the death of any son (except my son Washington) provided for by this article of my will before arriving at age, and also that in case of and upon the death of any or either of my daughters, except only my daughter Rosalie, at any time, leaving issue him or her surviving, that the principal of his or her share of such trust funds, with any unapplied income thereof, shall and I do so direct be paid over to his or her said issue according to the law of distribution of personal property of intestates now in force in the state of New York. And in case of and upon the death of either of my sons provided for in this article before attaining twenty-one years of age, or of either of my daughters (including my daughter Rosalie) leaving no issue him or her surviving, that then the principal of said trust funds of such child or children so dying, with any unapplied income thereof, shall be paid over to my executrix and form part of my residuary estate hereinafter mentioned; but in case my wife shall not be then living, then I give and bequeath the same to my descendants according to the law of the state of New York now in force regulating the distribution of personal property in case of intestacy."

The testator had nine children, all of whom survived him, as did also his widow. The share involved in the present action is the trust fund of $75,000 left for the benefit of the daughter Justina Cohen,

who died in August, 1918, without issue surviving her. Of the testator's nine children who survived him, only three survived Justina. Cohen. Two of the five who predeceased her left issue surviving her, while the other three that predeceased her left no issue. The widow also predeceased her.

[1] The question is whether the words "but in case my wife shall not be then living, then I give and bequeath the same to my descendants according to the law of the state of New York now in force regulating the distribution of personal property in case of intestacy," mean, descendants at the date of the death of the testator or descendants at the date of the death of his daughter Justina. If the former construction is placed upon the words, then portions of the $75,000 fund now under consideration go to persons not of the testator's blood, while if the latter construction obtains the entire fund goes to those who are of his blood. The counsel for the executors of Frederick Nathan, one of the testator's children who predeceased Justina. without issue, makes a very able argument that the will created a vested remainder in the descendants of the testator him surviving, and that consequently the executors of Frederick Nathan are entitled to a share of the fund in question, notwithstanding the fact that his branch of the testator's family was extinct at the time of Justina's death. This argument is based chiefly upon the proposition that the draftsman of this will evidently used the direction to "pay over" with careful discrimination, and that when he meant a gift in præsenti he used the words "give and bequeath."

In support of this proposition attention is called to the fact that in the paragraph under consideration the words "pay over" are used with respect to payment to Justina's issue, if any, and also with respect to payment to the testator's executrix, but that later, in coming to the provision which is now presented for construction, a different choice is made, and the words used are "give and bequeath." It is unquestionably true that one of the rules of construction of wills is that where the only gift is in a direction to pay or distribute at a future time this fact will be taken as an indication of the testator's intent that futurity is annexed to the substance of the gift and that the vesting is suspended. Everitt v. Everitt, 29 N. Y. 39; Warner v. Durant, 76 N. Y. 133; Smith v. Edwards, 88 N. Y. 92; Goebel v. Wolf, 113 N. Y. 405, 21 N. E. 388, 10 Am. St. Rep. 464; Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760. It does not follow, however, that the use of the words "give and bequeath" necessarily denotes a present gift. The learned counsel who wrote the brief now under consideration expresses a doubt whether a single case can be cited in which a gift in remainder has been held to be contingent, where there was no direction to pay or divide, but only an explicit gift in the words "I give and bequeath," and where there were no words of limitation. to persons "then" living. The reply briefs, however, cite cases where the words "give and bequeath" have been used, and where it has been held that the members of the class to whom the gift is thus made are to be ascertained not as of the date of the death of the testator, but as of some future date. Among the cases so cited are Robinson v.

« ÀÌÀü°è¼Ó »