#### In the Matter of the Transfer Tax upon the Estate of Jennie E. Whitney, Late of Stamford, Deceased.

(Surrogate’s Court, Delaware County,

September, 1910.)

Wills — Interpretation and construction — Terms defining quantum or duration of estates or interests — Rules and implications — Subsequent clauses reducing fee.

Under a will by which the testator provides: “I give, devise and bequeath all my property, real and personal and wheresoever situated to my wife (naming her) and after her death the same shall go to my daughter (naming her)”, the testator will be deemed to have intended his wife to have a life estate only, with remainder to his daughter; and upon the wife’s death the daughter takes under her father’s will, and there is no taxable transfer to her from her mother.

*132This is an appeal from an assessment of the estate of Jennie E. Whitney, late of Stamford, deceased, made by the county treasurer of Delaware county. In assessing the estate the county treasurer found as follows: “I do further report that the New York State Comptroller asks to have included in this estate the net amount of the real and personal estate of William Whitney, deceased, namely, $18,424.42, claiming that, under the will of William Whitney, deceased, this decedent (Jennie E. Whitney) took absolute title to his entire estate. On the contrary, the attorney for Winifred 13. Whitney, sole heir of Jennie E. Whitney, contends that the said will to Mrs. Whitney conveyed a life estate only, and that the estate of William Whitney descended to his daughter Winifred direct by the terms of his will and not through the mother’s estate. I am of the opinion that the latter construction is correct and have not included same in my report.”

The report of the county treasurer was confirmed by the surrogate and an appeal was thereafter taken by the Comptroller.

Barna Johnson, for Comptroller.

Hugh Govern, Jr., for respondent.

Grant, S.

William Whitney, a resident of Delaware county,' died February 29, 1908, leaving a last will and testament which provided, among other things: “I give, devise and bequeath all my property, real and personal, and wheresoever situated to my wife Jennie E. Whitney and after her death the same shall go to my daughter Winifred B. Whitney.”

His widow, a resident of Delaware county, died December 29, 3908, intestate, leaving her surviving a daughter and only child, Winifred 13. Whitney, now Winifred B. Govern.

The estate of William Whitney upon his death was appraised and the transfer tax imposed by law paid.

Upon the death of the widow, proceedings were instituted to appraise her estate for the purposes of the transfer tax, *133upon the theory she took an absolute fee to all of her husband’s estate, real and personal, under the provisions of his will, and that- her personal estate, amounting to the sum of $7,451.57, should bo augmented by the amount of her husband’s estate, amounting to the sum of $18,424.42, making a total of $25,875.99 subject to a transfer tax.

The claim of the daughter is that her mother, Jennie E. Whitney, only took a life estate under the will of William Whitney with remainder over to her; that the tax has once been paid upon her father’s estate and the mother’s estate is not sufficient to he subject to a tax; hence, no tax is due at this time.

The precise and only question for determination upon this appeal is whether the widow - of William Whitney, under the provisions of his will, took an absoluto fee in both his real and .personal estate, or whether she only took a life estate with remainder over to the daughter.

The rule that, in cases where the first taker is given the absolute power of disposition of both the real and personal estate, the first taker takes a fee, as established in Johnson v. Bull, 10 Johns. 19; Van Horn v. Campbell, 100 N. Y. 287, and other cases, has been limited or qualified by a line of cases that hold that, where the power of disposition is not absolute, so as to bring it within the rule, the first taker takes a life estate only. Terry v. Wiggins, 47 N. Y. 512; Smith v. Van Ostrand, 64 id. 278; Wager v. Wager, 89 id. 164; Matter of Cager, 111 id. 343; Crozier v. Bray, 120 id. 366; Rose v. Hatch, 125 id. 427; Leggett v. Firth, 132 id. 7; Matter of McClure, 136 id. 238.

In Terry v. Wiggins, supra, after a devise in fee of certain property, the will contained a devise of other real estate to the same devisee for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same, in part or the whole, if she should require it or deem it expedient; and upon her death the remainder was devised over to a religious society. It was held that, as to-the second deviso, the wife took a life estate only.

In Smith v. Van Ostrand, supra, Rapallo, J., in writing *134the opinion, says: “These cases sustain the proposition, that where an absolute power of disposal is given to the first legatee a remainder over is void for repugnancy. In Patterson v. Ellis, the language of the will was this, that the fund should be at the ‘ free and absolute disposal of his daughter after she should attain the age of twenty-one.’ In the other cases cited the remainders were held valid, but they recognize the proposition, that if the power of disposition of the first taker is absolute, the remainder is repugnant. But they also recognize the principal, that if the *jus disponendi*is conditional the remainder is not repugnant. (Hill v. Hill, 4 Barb. 419.) The power of disposition, -if any, in the present case, was only for a special purpose, viz., the support of the widow. If not required for that purpose, there was no power to appropriate the funds to any other.

“ The case of Upwell v. Halcy (1 Peere Williams, 651) is precisely in point upon this question. There the testator bequeathed to his sister such part of his estate as his wife should leave of her substance. The court say: ‘ It is now established that a personal thing or money may be devised to one for life, remainder over; and as to what has been insisted on, that the wife had a power over the capital or principal sum, that is true, provided it had been necessary for her subsistence, not otherwise.’ The remainder ever was held good.”

In this case there is grave doubt whether the widow had any power over the capital or principal sum, so far as disposing of the same is concerned. Ho express power of disposition is given. The most liberal construction that can be given the will is that the testator- intended his wife to have a life use with the power of using as much of the principal as might be necessary for her support and maintenance; and, if given such construction, the remainder over to the daughter would not be repugnant and would, therefore, be valid.

In Leggett v. Firth, supra, the will of F., after making certain specific provisions for his children, contained the provision: “ I give, also devise and bequeath to my wife Ellesheba all the rest and residue of my real estate; but on her *135decease the remainder thereof, if any, I give and devise to my said children or their respective heirs to be divided in equal shares between them.” . It was held the wife took a life estate only.

In Matter of McClure, *supra,*the will of McClure, which was drawn by himself, gave to his wife all his real and personal estate, to have and hold with full power to collect rents and income, to keep in repair, pay taxes and insurance, with full power to sell such real estate with the consent of his executors, as she thought best for the estate; should she remarry again, then she had her right of dower only in the estate. He also gave her discretionary power to give such sums of money to any, as she might think prudent, of his relatives. Upon the final accounting, several •children and grandchildren were living. It was held the widow took under the will only an estate for life, and as to the remainder the testator died intestate.

It is true the rule which favors the vesting of estates is well established; and the rule, in cases where a will admits of two constructions, the one which would disinherit children or lineal descendants and the other which would not the latter should be preferred, is also well established.

An intention to disinherit an heir, even a lineal descendant, when expressed in plain and unambiguous language, must be carried out; but it will not be imputed to a testator by implication, nor where he uses language capable of a construction which will not so operate. Low v. Harmony, 72 N. Y. 414; Matter of Brown Estate, 93 id. 295.

From the language employed by the testator in his will it is apparent he intended his wife to have a life estate only in his estate, with remainder over to his daughter; hence, the daughter takes under her father’s will and not through the mother; and, as this estate has once paid the tax required by law, it is not subject to a second tax. The mother’s estate without being- increased by the father’s estate is not sufficient to be subject to a transfer tax.

For the foregoing reasons the appraisal of the county treasurer is affirmed.

Appraisal affirmed.