Gaylord v. Barnes, 113 N.Y.S. 605

113 N.Y.S. 605 | N.Y. App. Div. | 1908

Lead Opinion

Chester, J.:

There are several reasons why the plaintiff’s claim must be sustained: . .

First. The proviso giving James Smith a life estate in the property - never took effect, because that estate was conditioned . upon the death of Nancy C. Barnes prior to his death, and he died leaving her surviving.

Second. The words “ with this provision ” in the clause claimed to operate as a limitation, according to ordinary grammatical construction, refer to a single provision following them and modify all that follows. James Smith having died previous to his wife, Nancy C., none of the provisions ever had any effect, as by the express language employed it was only in case of the death of Nancy C. prior to the death of James that it was to have any force. The words, “and after the death of the parties herein named this property shall revert to the heirs of the said Nancy C. Barnes,” cannot be regarded as a separate provision without changing-the words “with this provision” to “with these provisions,” or without adding after the words “ natural life ” the words “ and with this, further provision.” This may be a rather narrow construction, but it would seem to- be warranted under the rule that where there is an ambiguity in the language employed it should be construed most strongly against the grantor. (Duryea v. Mayor, 62 N. Y. 592 ; Ripley v. larmouth, 56 Barb. 21.)

Third. The grant to Nancy 0. Smith in the granting clause of the deed and reiterated in the habendum was of an estate in fee' and not of one for life, and the clause in the provision that after the death of the parties the property shall revert to the heirs of the said Nancy C. Barnes is repugnant to the prior grant of an absolute estate, and is void for the reason that a remainder cannot be limited on a fee as it is wholly inconsistent with it. (Campbell v. Beaumont, 91 N. Y. 464; Roseboom v. Roseboom, 81 id. 356 ; Washbon v. Cope, 144 id. 287; Clarke v. leupp, 88 id. 228; Harriot v. Harriot, 25 App. Div. 245; Jackson v. Bull, 10 Johns. 19; Jackson v. Robins, 16 id. 537.)

The evident intention of the grantors in the deed by the use of the language employed in the proviso was to prevent the property going to the heirs of James Smith in the event of his surviving Haney C. Barnes. He having predeceased her, a construction of the instrument which gives the absolute title to her gives full effect to that intent.

This is not a case where the grant to the grantee was one of a life estate with a remainder over to her heirs, and, therefore, decisions under that class of cases holding that such heirs have a vested interest have no bearing on the question involved.

We think the plaintiff is entitled to judgment for the relief prayed for, but under the stipulation of the parties contained in the submission it should be without costs.

All concurred, except Kellogg and Sewell, JJ., dissenting, in memorandum.

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Dissenting Opinion

Kellogg and Sewell, JJ. (dissenting):

There are no heirs to' the living. It is unknown whether the defendants may or may not -be the heirs of Nancy C. Barnes. The court cannot, therefore, make any decision which would be effective to bind her heirs. A decision on this apparently friendly submission can only be misleading to others.

Judgment for plaintiff, without costs.