MILLS, J. This is an action for the construction of the will and codicil of Nancy Uhl, so far as to determine the disposition thereby made of the farm belonging to the testatrix, upon which she resided, and of a detached wood lot, both purporting to be devised by such will and codicil. The will was executed February 13, 1884, and the codicil February 23, 1886. The testatrix died in Dutchess county January 4, 1887, and the will and codicil were duly admitted to probate by the surrogate of that county on the 7th of February, 1887. The following is an abstract of the will and codicil.

First. The will bequeathed to the two plaintiffs, who were granddaughters of the testatrix, all her household goods, furniture, and effects.

Second. By the third paragraph or division of the will the said two granddaughters were given the farm upon which the testatrix resided and a certain detached wood lot. The provisions of such paragraph or division are somewhat involved; but it is clear I think that, taken alone, their effect would have been to vest the farm and wood lot in the two grandchildren in fee upon the death of the testatrix, or in the granddaughter Inez upon the payment by her to the other granddaughter of $4,000, or, in case of the sale of the farm and lot, to vest the proceeds thereof in the two granddaughters. It is unimportant here to consider in greater detail such provisions.

Third. By the fourth paragraph or division of the will the residue of the testatrix's property was given to the two granddaughters "when they shall arrive at the age of twenty-five years."

Fourth. The fifth paragraph of the will was as follows:

"Should either of my granddaughters die leaving no child or children, then I direct the share of such deceased one to go to the surviving one or to her children. It is my earnest desire, and I hereby solicit my granddaughters to ever hold and keep the above bequests in their own right."

Then followed a clause appointing an executor.

Fifth. The codicil, after reciting the will, provided as follows: "Now, therefore, I do by this my writing which I hereby declare to be a codicil to my last Will and Testament, and to be taken as a part thereof, order and declare that my will is that in case both of my granddaughters should die leaving no child or children, then I give the farm and wood lot I now occupy unto Arthur M. and Geo. H. Uhl, Leonard U. and Mary Vincent and Ralph Vincent share for share alike. Furthermore, in case both of my granddaughters die leaving no child or children, then I give all my personal property unto my brother Edmond P. Hawes, my sister Eliza Lawrence, Samantha Leach and Almira Briggs or their children, per stirpes forever. It is my desire that this codicil be made a part of my last Will and testament to all intents and purposes."

The effect of the codicil plainly was simply to add to the will a devise and bequest over upon the contingency of both granddaughters dying leaving no child or children; whereas, the will contains such devise and bequest over only upon the contingency of one of the two granddaughters dying. The testatrix left at her death personal property in addition to household effects, as well as the farm and wood lot. Both granddaughters survived her and are still living, being the plaintiffs. The personal estate has been administered upon and settled

evidently upon the theory that the provisions of the will and codicil gave such to them absolutely upon the death of the testatrix.

The question here to be determined is whether the provisions in the will and codicil, as to the death of either or both of the two granddaughters, means such death before only or at any time either before or after the death of the testatrix. If they mean such death before that event, then the title of the plaintiffs by the death of the testatrix became absolute, and they can now give a good conveyance of the farm and wood lot; but, if they mean such death at any time, either before or after such event, then the title to the farm and wood lot is still contingent, and they cannot give a good conveyance of the same. The need of such determination arises from the fact that the two granddaughters have lately attempted to sell the farm and wood lot and their title has been rejected upon the claim that it is at least doubtful under the provisions of the will and codicil by reason of the question above recited. The general rule of construction applicable to this question is well settled, to the effect "that, in a devise to one person in fee and in case of his death to another, the death referred to is that of the first devisee during the life of the testator"; but, as was clearly and concisely stated by the Appellate Division of this department, Mr. Justice Jenks writing, in the case of Cromwell v. Cromwell, 55 App.Div. 103, 66 N. Y. Supp. 1063, affirmed 168 N. Y. 680, 61 N. E. 1128, this rule, being one of necessity, is "sharply limited." One well-recognized limitation is "where the context of the will contains language evincing a contrary intent." In order to ascertain the intent of the testatrix, the language of the will and codicil must be read in the light of the circumstances under which she wrote or used such language. In the Cromwell Case, just cited, the Appellate Division found the contrary intent of the testator indicated by certain expressions used in one of the codicils in view of the circumstances of the testator in making the several codicils. The language being construed, viz., the expression "on the death of my son Oliver," used in the fourth codicil, was held to refer to such death at any time largely for the reason that in other paragraphs, viz., a part of the second codicil where it was clear that the testator intended to refer to a death before his own, he very clearly so stated, using the words "shall depart this life before my death." Also the court found in the will and codicils taken together the clear intent of the testator to keep his residence in the line of family succession so far as the statute suffered it. The fact appeared that a grandson had been born between the making of the third codicil and that of the fourth. Hence the court found that the construction adopted was in harmony with such intent and promotive of its accomplishment. I can find in the will and codicil in this case no expression indicating to my mind any intent on the part of the testatrix that the death of one or both of the granddaughters referred to should be such death at any time.

The defendants' counsel rely very strongly upon the case of Cramer v. Cramer (First Dept.) 59 App. Div. 541, 69 N. Y. Supp. 299, affirmed 170 N. Y. 271, 63 N. E. 279. That was a case of the will of an old lady who gave all her personal property to two named great grandchildren, with this added provision:

"But in the case of the death of either of said great-grandchildren, Gracie or Myrtie, without heir or heirs, I direct that such share of my personal property shall go to the survivor of them."

At the time when the will in that case was executed, the testatrix was 85 years of age, and the great granddaughter Gracie was 11 years and the great granddaughter Myrtie 9 years. The court, construing such provisions of the will, after holding that the expression "without heir or heirs" meant children or issue, decided that the circumstances of the testatrix, namely, her extreme age and the youth of the beneficiaries, the great granddaughters, at the time of the making of the will, made it utterly improbable that the testatrix could have supposed it possible that the contingency of either great granddaughter having a child could happen within her own lifetime. The court therefore held that she must have intended the death of either great granddaughter at any time; that is, after her own death. It is stoutly urged by the defendants' counsel that the circumstances in this case are so similar as to make the reasoning of the courts in the Cramer Case, just cited, controlling here. It does not seem to me, however, that this contention is sound. In the case here at bar the testatrix, when she made the will, was 62 years of age and only 64 when she made the codicil. She was at both times in good health. The two granddaughters were, respectively, Inez 15 at the date of the will and about 17 at the date of the codicil, and Edith 6 at the time of the will and 8 at the date of the codicil. The testatrix died about a year after making the codicil, being then 65 years of age. It cannot be considered improbable that a woman in good health, 64 years of age, thought that a granddaughter of hers then about 17 years of age might be married and have a child during the woman's lifetime; and, indeed, it cannot be held improbable that she might have entertained the same expectation as to a granddaughter 8 years old at that time. In the case of either of the granddaughters here such contingency might well have happened after the making of the codicil and before the testatrix here became as old as was the testatrix in the Cramer Case when the will there was made. Therefore I perceive nothing either in the language of the will and codicil under consideration or in the circumstances of the testatrix at the time of their making to indicate any intent on her part to give to the language used by her any other than its ordinary legal significance. Indeed, it would seem from the final sentence of the devise over clause of the will, viz., "It is my earnest desire, and I hereby solicit my granddaughters to ever hold and keep the above bequests in their own right," that the testatrix apprehended that, under the provisions of her will, her granddaughters within their lifetime would have the power to absolutely dispose of such bequests, which, of course, would be inconsistent with the view or construction claimed by the defendants.

My conclusion, therefore, is that the provisions of the will and codicil under consideration are to be construed to the effect that the death of one or both of the granddaughters referred to was by the testatrix intended to be such death within her lifetime, and that, therefore, the two granddaughters at the present time are owners of the farm and wood lot in fee and capable of selling and conveying the same by good title.

(62 Misc. Rep. 317.)

PEOPLE ex rel. FLEISCHMANN MFG. CO. v. MARENS et al. (Supreme Court, Special Term, Westchester County. November, 1908.) 1. SCHOOLS AND SCHOOL DISTRICTS (8 102*)-TAXATION-TRACTS-PARTLY IN Two DISTRICTS-"PERSON."

Consolidated School Law (Laws 1894, p. 1235, c. 556) tit. 7, § 63, provides that school district taxes shall be apportioned upon all real estate within the district not exempt from taxation, and that such property shall be assessed to the person or corporation owning it, but that a tract occupied by the "same person" if assessed as one lot on the last assessment roll of the town shall, though situated partly in two or more districts, be taxable in the one in which such occupant resides. A manufacturing corporation owned a tract, one-third of which, with 31 buildings of its plant and its principal office, was in school district No. 7, while the remaining area and 20 of the buildings were in district No. 6. Held, that though the tract was assessed as an entirety on the last town assessment roll, and the corporation was a resident within the statute, it was not a "person," and hence cannot complain of an assessment by district No. 6 of the property lying therein.

[Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. 238; Dec. Dig. § 102.*

For other definitions, see Words and Phrases, vol. 6, pp. 5327-5330; vol. 8, p. 7752.]

2. TAXATION (§ 255*)-PLACE.

Generally land is taxable in the tax district, technical or actual, in which it is situated, and any statute creating an exception to the rule must be strictly construed.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 427; Dec. Dig. § 255.*]

3. TAXATION (§ 275*)-CORPORATIONS-RESIDENCE-"Resident."

A corporation is to be regarded for purposes of taxation as a resident of the locality where its principal office is situated.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 450; Dec. Dig. § 275.*

For other definitions, see Words and Phrases, vol. 7, pp. 6163, 6164; vol. 8, p. 7788.]

Certiorari by the People of the State of New York, on the application of Fleischmann Manufacturing Company, to review a tax assessment by Albert P. Marens and others, tax assessors for Union Free School District No. 6, town of Cortlandt, Westchester county, N. Y. Writ dismissed.

George B. Lester, for relator.

Nathan P. Bushnell, for defendants.

MILLS, J. This is a certiorari proceeding taken under the tax law to review the assessment of the real property of the relator, situated in school district No. 6, made by the board of education of said district acting as a board of assessors. The relator corporation owns, and from September, 1900, has owned, a tract of land within the village of Peekskill and town of Cortlandt, Westchester county, being about one mile in length, running north and south, and upon an average of a quarter of a mile in width east and west, and being bounded, generally speaking, on the west by the Hudson river. The northern

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

part of the tract, constituting, as would appear by the map submitted, about a third of its area, is situated in school district No. 7, and has upon it some 31 different buildings, and the other or southern part of the tract is situated in school district No. 6, and has upon it 20 buildings. The dividing line between the two districts, which intersects the tract by running across it from east to west, intersects 5 buildings. The relator corporation carries on and for such period has carried on upon said tract and in said buildings the business of manufacturing yeast and certain other products, using all the buildings as one manufacturing plant. Its principal office and place of business, where its records are kept and the meetings of its stockholders and board of directors held, is and since 1900 has been in a building upon the northeastern part of the tract, designated on the map submitted as "Office" and situated within district No. 7.

The tract has always, while in the ownership and use of the relator. been assessed to it by the assessors of the town of Cortlandt as one tract or lot, and so appears upon each assessment roll of said town after revision by the assessors, including the roll of 1907. From 1900 to 1906, inclusive, the portion of the tract lying in each of said school districts was separately assessed in such district, and the relator was separately taxed in each such district for its assessment therein for the portion of the parcel lying therein, and paid such taxes. In the year 1907 two of the trustees of said districts, one from each, together orally submitted to the chief of the law division of the state education department the question whether or not the entire tract belonging to the relator, above described, should be assessed and taxed in district No. 7 alone, or should be assessed in both districts as the previous practice had been. Such chief of the law division, in response to such submission and inquiry, on the 5th of August, 1907, wrote a letter to each of such trustees, in effect giving as his opinion that the whole tract should be assessed in district No. 7. His letter in substance stated that section 11 of the general tax law (Laws 1896, p. 802, c. 908) provided that "the real estate of all incorporated companies liable to taxation shall be assessed in the tax district in which the same shall lie, in the same manner as the real estate of individuals," and that, therefore, the tract in question should be assessed entirely in district No. 7, because, under the provisions of section 63 of title 7 of the consolidated school law (Laws 1894, p. 1235, c. 556), such tract would be so assessed under the circumstances if it belonged to and was occupied by an individual.

It may be noted, in passing, that the Court of Appeals in the case of People ex rel. Champlin v. Gray, 185 N. Y. 196, 77 N. E. 1172, in May, 1906, held that a village, although an actual tax district for the purpose of imposing and collecting village taxes, was not a tax district. within the meaning of the tax law. By parity of reasoning it would seem that a school district is not to be regarded as a tax district within the definition of that term contained in the tax law. Following the receipt of such opinion in September, 1907, the board of education of district No. 7 assessed the entire tract to the relator, and the board