49 N.Y.S. 447 | N.Y. App. Div. | 1898
’The. questions to be determined in this case arise upon the submission of a controversy under the provisions of section 1279 of the Code of Civil Procedure, and the substantial inquiry to be made is, what was the nature and extent of the estate which the grantee named in the deed set forth in the submission acquired by that deed ?. Was it a life estate, or was it a fee simple ? ' The plaintiff is the widow of the grantee, and her claim here is that she is entitled to-dower .in the land conveyed. The defendant is the only heir at law of both the grantor and grantee, aiid she claims the whole estate free from dower of the plaintiff. It appears by the agreed statement of facts that James Harriot, prior to November, 1855, was the owner of the land in question. On that day he executed a deed of gift to his son William H. Harriot, now deceased. By the terms-of that deed, in consideration of natural love and affection, he conveyed to his son William Henry Harriot the premises in question (describing them), “together with all and singular the tenements,, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and
It is conceded by both parties to this controversy that, judged by the habendum clause alone, the estate granted by the father to the son would have constituted before the Revised Statutes an estate tail. It is claimed by the plaintiff that by force of section 3 of the statute relating to the creation and division of estates (1 R. S. 722) the grant in this deed was enlarged into a fee simple absolute because no valid remainder was limited .thereon. The single question arising, therefore, on this branch of the case is whether or not a remainder limited as is that in this deed is a valid remainder under the law of this State. The contention on the part of the plaintiff is that it was not valid because neither at the time of the grant, nor at any other time, was there any one in being in whom the remainder could vest. But it is not required in order to make a valid remain-, der that it should be a vested one. The statutes of this State expressly authorize the creation of contingent future estates, and declare an estate to be contingent while the person to wliom or the event upon which it is limited to take effect remains uncertain. The mere fact that there was no child or issue of the grantee in existence at the time the grant was delivered did not invalidate the remainder. Limitations over by way of remainder to unborn issue, to take effect after the expiration of a particular estate, are perfectly good under our Revised Statutes. It is said in Manice v. Manice (43 N. Y. 374): “We are of opinion that under the provisions of the Revised Statutes (1 R. S'. 723, §§ 15, 16, 726, § 37), a remainder in fee in real estate, to take effect upon the termination, of two lives in being at the time of the creation of the estate; may be limited to a person not in being at that time.” And so it is said in Purdy v. Hayt (92 N. Y, 456): “ It is no objection to the validity of a remainder in fee that it is limited in favor of persons not in being when the limitation is created, or not ascertainable until the termination of a precedent estate, provided only that the contingency upon which the remainder depends must happen within or not beyond the
Another question remains for decision, and that relates to the true construction of this deed, regard being had to all its provisions. The habendum clause is not absolutely controlling. While, in ancient times, such a clause defined and fixed the quantity of an estate to be taken by the grantees, it has ceased to perform that office in modern conveyancing. Usually the granting clause or the premises of the deed would indicate what was intended to be conveyed. By our statute it is provided (1 R. S. 748, § 1), among other things, that every grant of real estate shall pass all the estate or interest of the grantor unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied from the terms of such grant. If there is a plain and open repugnancy between the granting clause and the habendum, and nothing else to be considered, the larger estate' granted may not be cut down or reduced by the" habendum; but, in the construction of deeds, as of other instruments, the real question is, what was the intention of the' grantor, to be gathered from all the terms of the instrument? Here it seems to me that it is plain that this grantor merely intended that his son should have a life estate in the property. The contrary cannot be conclusively inferred from the grant of the “ reversion and reversions.” Those are only cumulative words to pass the whole fee in the remainder when the contingency upon which that remainder is limited should happen, viz., on the birth of issue to the
I am, therefore, of the opinion that there was a valid remainder limited upon the life estate, and that it was the intention of the grantor to create by the deed only a life estate in the son and nothing more, and that the plaintiff is not entitled to dower in the premises described in the complaint, and that the defendant is entitled to the whole estate in fee, and that judgment to that effect should be directed, with costs to the defendant.
Van Brunt, B. J., Barrett, RuMSEv and O’Brien, JJ., concurred.
Judgment ordered for the defendant, with costs.