6 Paige Ch. 541 | New York Court of Chancery | 1837
There is no question as to the com» plainant’s right to one third of the premises under the will of his father, or as to the infant defendants’ right to another third. It is insisted, however, in behalf of the infant defendants that by the true construction of the will of their grandfather there was an executory devise in their favor of the one half of the share of their uncle Isaac Starr Clason, who died without issue before a division of the premises was made.
I think it is very evident from the whole of this will taken together, that it was the intention of the testator that if one of Ms sons died without issue after another had died who had children then surviving, such children should have the proportion of that share of the estate which their father would have taken if he had then been living The doubt
There can be no doubt in this case that the remainder in fee was vesteddn 1.8. Clason 14 days previous to his death,
The conclusion at which I have arrived on this part of the case is that the limitation over to the survivors or survivor of the three sons or to their children in case of the death of either without issue before a division should be made, was not intended by the testator to refer to an actual division of the estate after the twenty years should have elapsed, but to the time itself which had been prescribed by him when a division could be made according to the terms of the will. I. S. Clason, previous to his death, was therefore seized of an absolute and indefeasible estate of inheritance in one third of the premises which would have descended to all his brothers and sisters or their descendants, as his heirs at law, if it had not been previously conveyed. And as this remainder was vested in interest at the time of the conveyance to Lockwood in 1820, as a conditional fee, the title to the same passed under that deed; and is now in the complainant by virtue of the subsequent conveyances stated in the bill and in the master’s report. The first exception must for this reason be overruled.
Upon the subject matter of the other exception, however, I think the master has come to a wrong • conclusion. A farm containing 370 acres of land must be very peculiarly situated to render it impracticable to divide it into three parts without great prejudice to the owners; especially where the court may decree a pecuniary compensation to be made by one party to the others for owelty of partition. (See 2 R. S. 330, § 83.) The question is not as supposed by the master, whether it would be for the benefit of the infants to have their shares of the estate converted into money instead of remaining in land producing a less income. For if it is for their interest to sell their shares for the purpose of a better investment, it may be done afterwards under the general law relative to the sale of infants’ estates; and when they will not run the risk of having their interest in a large property sacrificed for want of funds to compete
The second exception is therefore allowed. And the costs of both parties upon the exceptions are to be costs in the cause, to be apportioned upon the final decree.
The decision of the chancellor upon the construction of the will in this case was affirmed by the court for the correction of errors in December, 1837.