231 A.D. 704 | N.Y. App. Div. | 1930
Cross-appeals by plaintiff and by infant defendant Ann Clare Brokaw, by her guardian ad litem, Joseph N. Tuttle, and by infant defendants Margot McNair Fairchild and Elvira Brokaw Hutchinson, by their guardian ad litem, John J. Curtin, from so much of a judgment of the Supreme Court, entered in the New York county clerk’s office on December 24, 1929, as is contained in paragraphs 1, 2, 3, 4 and 15; by Irving Brokaw and certain remaining defendants from so much of said judgment as is contained in paragraphs 5 to 14, inclusive. Judgment so far as appealed from affirmed, without costs. No opinion. Present — Dowling, P. J., Finch, MeAvoy, Martin and O’Malley, JJ.; Finch, J., dissents. [135 Misc. 70.]
This is an action for a declaratory judgment, declaring that equity will not restrain a life tenant and a vested remainderman from removing a partly obsolete dwelling house and erecting in its place a modern apartment house without mortgage incumbrance and wholly at the expense of the life tenant. An injunction is prayed for by a class of contingent remaindermen. The testator left to three sons and a daughter a life interest each in four separate dwelling houses, with remainder to the issue of each, and providing further that if the respective life tenants should die without leaving issue, the dwelling house" in question should go to the remaining heirs of the testator. The learned court at Special Term has clearly shown that the testator contemplated no testamentary scheme which made these dwelling houses interdependent. If all the other facts and circumstances were absent, this conclusion might rest alone upon the fact that the testator gave the contingent remainder in each individual dwelling house to a class of persons in the event of the death of the respective children leaving no issue. It is clear, therefore, that this plaintiff has received a plain, unconditional life estate and that the entire remainder is now vested in his daughter, subject only to a contingent remainder in the three other children of the testator and their issue who will be living at the death of the life tenant, provided his young daughter should predecease him. The dwelling house in question was built by the testator many years ago and is of the old-fashioned type. In addition, it appears that obsolescence generally has fallen upon large dwelling houses such as this in the city of New York, due to the disinclination of dwellers to burden