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O'Hara agt. Sullivan.

right of the widow to that portion of the personal estate. If it be ever loosely used elsewhere, synonymously with dower, it is always disjunctively " dower or thirds," which indicates a special meaning. It is never used conjunctively with dower, as "dower and thirds," except in connection with the personal estate, as in the present instance. (Roberts on Wills, Am. ed. II, 143, precedents; Clerk's Assistant, Ruggles, 148; Smith agt. Smith, 5 Vesey, Jr. 189; Palmer agt. Voorhis, 35 Barb. 479; 3: Rev. Stat. p. 183, 5th ed.)

III. The rule of construction both in England and this country, requiring a meaning to be given to every word in a will, where it can be given consistently with the intention of the testator, seems conclusive in this case. The words "dower and thirds," denote something additional to dower, and properly and reasonably the words "and thirds," must, therefore, be applied to the "personal estate," which forms a part of the devise, and be construed to restrict its disposal. An intention of the testator, after bequeathing the personal property, to express a reservation of this right of his wife, could hardly have been expressed in any more explicit way without a great redundancy of language. If this construction be not given, then the words "and thirds," have no meaning, for the word "dower," of itself, expresses all that was intended in regard to the real estate. (Jarman on Wills, II, 526, Am. ed. 743 Eng. ed. Rule 16; Doe agt. Rawding, 2 Barn. & Ald. 448; Dawes agt. Swan, 4 Mass. 208; Parsons et Ux. agt. Winslow, 6 Mass. 175; Doe d. Littlewood agt. Green, 2 Jur. 859.)

IV. There is no intention expressed in the will on the part of the testator, to deprive the plaintiff of her interest in his personal estate, and she is, therefore, entitled to have and receive one-third of such personal estate remaining after the payment of his debts and testamentary expenses.

O'Hara agt. Sullivan.

D. P. BARNARD and THOMAS E. PARSALL, for Edward
L. O'Hara.

I. The widow of Peter O'Hara can claim no part of the surplus of the personal estate of the deceased under 2 Revised Statutes, 96, section 75, because,

1st. The deceased did not die intestate.

2d. The whole surplus was bequeathed to his two chil dren Edward and Cecelia.

II. The testator has expressly disposed of all the surplus of his personal property to his two children Edward and Cecelia, and there is nothing in the bequest from which it can be implied that he intended to give his widow onethird of his personal estate. (2 Jarman on Wills, 742; Colleton agt. Garth, 6 Sim. 19.)

III. The expression "subject to the dower and thirds of my wife Mary O'Hara," cannot be construed into creating a bequest of one-third of the personalty.

1st. Because had he intended to give her more of the personal property than was specifically bequeathed to her, he could have used more apt words than subject, which means a burthen, or a description of the incumbered condition of the property.

2d. The words "dower and thirds," are generally used in reference to real estate only (McCall's Clerk's Assistant, 2d ed. 157, 556).

3d. A devise of lands subject to a mortgage or incum. brance, in England, does not throw any charge on the lands to pay the debt, or exonerate the personal estate of the tes tator therefrom. (2 Jarman on Wills, 553; Serle agt. St. Elory, 2 P. Williams, 386.)

4th. The testator in the use of the words subject to the dower and thirds of his wife, refers to something belonging to her which he had no right to dispose of.

5th. Even if the testator was of the mistaken opinion that the law gives his wife one-third of the personalty, she

O'Hara agt. Sullivan.

cannot take any under this will. So, if he was of the opinion that she was entitled to dower in the houses or leasehold premises.

IV. There is nothing in the surrounding circumstances of the testator to lead to the inference that he intended or even desired to give his wife one-third of his personal estate.

1st. He gave her a dwelling house and all the furniture therein.

2d. She was entitled to dower in $100,000 of real estate. 3d. She had no children to support out of her income. 4th. It does not appear that the will was drawn by one incompetent to express in words the intention of the testator.

V. It is insisted on behalf of Edward Lawrence O'Hara, that he is entitled to judgment for one-half of the surplus of the personal estate.

*

BARNARD, J. The husband of the plaintiff died leaving a will, and therein bequeathed the whole surplus of his personal estate remaining after the payment of debts and legacies, and the plaintiff is entitled to no share of such estate unless it is obtained by the terms of the will itself. The testator, by the fifth clause of his will bequeaths and devises all the rest, residue and remainder of his estate, both real and personal, to his two children, “subject, nevertheless, to the dower and thirds of my wife Mary O'Hara."

This clause presents two questions. Do the words dower and thirds, have reference to the real estate only? and if they can fairly be construed to refer to both real and personal property, what rights did the widow get under them in the personal property bequeathed by this clause? I am satisfied that the word thirds, has no reference in this clause to the personal property. If the widow was entitled to distribution, as in case of intestacy, she would take abso

O'Hara agt. Sullivan.

lutely one-third of the personal property. The clause in question gives all his real and personal property to his children, "to be divided between them, share and share alike," subject to the dower and thirds of his wife, Mary O'Hara. It seems to me quite improbable that the testator intended that his personal property was to be divided in three parts, from this language. The gift is subject to the dower and thirds, burdened with a recognized legal lien and right, and such an estate could only exist as to the real estate. She had no claim to the personal except by this will. The will has not given it except by this clause, and the clause refers to dower and thirds as an existing thing, subject to which the estate is given. If the words can be construed to refer to real and personal property, then, I think, they are not sufficient to bequeath any portion of the personal estate. The gift to the children is absolute, subject to plaintiff's thirds. She had no thirds. The tes tator has failed to convey to her any interest, and the gift to her children, subject to a claim which had no existence, is an absolute gift.

I think the plaintiff not entitled to any interest in the personal property under the fifth clause of the will of deceased, and that distribution is to be made to the children of deceased, share and share alike named in that clause, or their representatives.

I concur, J. A. LOTT.

Foster agt. Wood.

NEW YORK COMMON PLEAS.

AMASA S. FOSTER agt. RUFUS H. WOOD, Administrator, and SARAH E. MESSER, Administratrix of WILLARD MESSER, deceased.

Where a summons in the form prescribed by law for the case in which a copy of the complaint is served with it, is served without the complaint, and does not stato where the complaint will be filed, the omission does not render the judgment void. It is an irregularity, of which advantage should be taken by motion. Section 136 of the Code, which provides for the manner in which judgment may be entered against joint debtors, and enforced against the joint property of all, has not repealed the provision of the Revised Statutes which declares how far such a judgment shall be evidence of liability.

Where a joint debtor has not been served with process, but judgment in form is entered against him under section 136 of the Code, he is not to be considered a "judgment debtor," within the meaning of section 376, providing for summoning his heirs, &c., to show cause why the judgment should not be enforced against them.

General Term, February, 1866.

Before DALY, F. J., BRADY and CARDOZO, Judges.

An action was brought by the plaintiff against William Leavenworth and William Messer, in the life time of Messer, upon a joint obligation entered into by them, in which action Leavenworth alone was served with process, and a judgment was entered up against both in conformity with the provisions of the statute in relation to joint debtors. (2 R. S. 377; Code, § 136.)

After the entry of the judgment Messer died, and the plaintiff summoned his personal representatives, the defendants, to show cause why the judgment should not be enforced against the estate of Messer in their hands, under the 376th section of the Code, which authorizes such a proceeding in case of the death of a judgment debtor after judgment. The defendants in their answer first denied the existence of any judgment, and then as respects Messer, averred that he was not a judgment debtor; that as he had never been served with process, and had never appeared

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