CHURCH, Ch. J.
Neither of the three principal questions argued in this case is free from difficulty, and I have arrived at the conclusion to sustain the decision of the General Term with some hesitation and doubt. The question whether the devise to Hiram B.B. Thurber lapsed by reason of his death prior to that of the testator, depends upon whether the word "heirs" is to be construed as children. If not so construed it is a word of limitation, and the devise would lapse; if so construed it is a word of purchase, and the children would take equally with the father; and in that case the appellants, as heirs of the testator, would take no interest in the estate.
Prior to the Revised Statutes a devise to a person without adding the words, "and to his heirs," would only create a life estate; and although those words are not now necessary to create a fee, their use ordinarily only serves as a limitation to vest the fee in the devisee. The word heirs will, however, be construed to mean children when, from the whole will, such appears to have been the intention of the testator. ( 53 N.Y., 233, 238; 38 id., 410.) The interlineation by the person who drew the will, of the words, "and his heirs," is relied upon as evidence of such intent. Although the use of them was unnecessary to vest a fee, it is quite common, and the usual way in deeds and conveyances to insert them for greater certainty, and their use, although intentional, as evidenced by their being interlined, is very slight to indicate a design to make a joint devise to Thurber and his children. Indeed, it might be inferred that if such was the intention of the interlineation, language would have been used, of certain import, to accomplish the purpose. The circumstance that the testator did not change his will after the death of Hiram, if competent upon this question, is very equivocal and not entitled to much consideration. Besides, in the will itself, in charging the legacies, the testator charges them upon the estate "hereby devised to Hiram B.B. Thurber," thus defining the devise as an estate limited to him; so that, to say the least, the intention is not sufficiently indicated to justify the construction that the heirs in this will means children.
The next question is, whether the support of Elsie Whitney is charged in the will upon the remainder devised to Hiram. The fourth clause of the will, after making several specific legacies and directing that Elsie Whitney shall be supported "out of my estate," declares, "and the estate hereby devised to Hiram B.B. Thurber is charged with the payment of the bequests mentioned in this section of this will, and the same are a mortgage on the estate so devised to the said Hiram;" and by the next clause, in the event that the testator survives his wife, the said legacies are charged upon the estate devised to Hiram, and also, "the support and maintenance of the said Elsie Whitney."
It is argued that the "bequests" which are charged in the fourth clause were not intended to include the support of Elsie Whitney, and that such support was charged generally upon his estate. Although the language indicates a distinction between "bequests" and the support of Miss Whitney, that is not decisive of the point, as unnecessary words are often used for greater certainty. It is quite evident that the testator intended to charge his estate with the support of Elsie Whitney, and, it is a reasonable inference, that he intended to charge his real estate. Upon the appellant's construction, the real estate would not be charged at all; and yet by the fifth clause it is expressly charged upon his whole estate. The provision for this old lady was a "bequest," and is legally embraced within the language used in the fourth clause; and unless a contrary intention is evinced in other parts of the will, the legal effect of the language must prevail. No such intention appears.
It is a general rule that provisions in a will intended for the support of the wife, will receive the most favorable construction to accomplish the purpose intended. The whole estate was given to the wife for life. It does not appear what the amount of the personal estate was; the farm consisted of 170 acres of land, an undivided half of which had been conveyed to Hiram by deed. It cannot be presumed that the testator intended to abstract from the income of a small farm, which common experience shows would afford but a scanty support for the widow, sufficient to support another person, who from age and infirmity was unable to render much assistance to others, or even to herself, and especially will this not be presumed against the legal effect of the language employed.
The plaintiff having occupied the premises and supported Miss Whitney, claims the benefit of the lien created by the will. Although the devise in favor of Hiram lapsed, the lien or charge for her support attached to, and followed, the remainder, devised to Hiram, in the hands of the heirs. (36 Barb., 546; 1 Paige, 32.) And if the plaintiff is entitled to the benefit of this lien it will absorb the avails of the property which has been sold. It is found that the plaintiff supported Elsie Whitney upon the faith and credit of the provisions made for her in the will. The evidence is meager upon this point, but I think it sufficient to sustain the finding. It was proved that such support was furnished at the request of the legatee, and the will was examined and referred to as containing a provision for such support. It is reasonable to infer that the parties intended that the plaintiff should have the benefit of the lien; and it is not indispensable to enable a court of equity to carry out such intention that they should have known and understood the precise legal effect of the will or the lien. It may be implied from the circumstances, and what little transpired, that the design was to compensate the plaintiff with the provision in the will. They may not have understood the legal character of that provision, nor that the devise lapsed, but it is quite evident that the plaintiff was to have the benefit of it; and equity will carry out that intention, although it may be necessary to do so in a different manner from what was anticipated. It is peculiarly the province of equity to enforce the substantial rights of parties, and it will construe the circumstances surrounding a transaction for this purpose.
It was not necessary that the assignment should be in writing. A parol assignment is equally effective; and if, from what took place, an inference may be drawn that the parties intended that the plaintiff should have the benefit of the provision in the will in any way, a court of equity will give effect to the general intention by securing the plaintiff's right in any legal way. There is no pretence that any one else rendered any support; the presumption is that Elsie had no other means of support; the will was referred to as a reliance for support, in connection with a request to plaintiff to render the support. Under these circumstances I think the court below was justified in holding an equitable assignment in favor of the plaintiff.
The question of costs is raised by the appellants. At the Special Term one half of the costs was awarded against the appellants, which was affirmed. As the appellants have succeeded in establishing that the legacy lapsed, they were justified in making a defence to the title of the plaintiff, and as to the lien or charge in favor of Elsie Whitney and in contesting the amount of it, and they should have the costs out of the fund.
The judgment should be affirmed with the modification that the appellants, in this court, as well as the respondents, are to be allowed costs out of the fund reserved.
All concur.
Judgment accordingly.
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