198 A.D. 394 | N.Y. App. Div. | 1921
The surrogate has determined that under the will of the testator his widow had a vested title to the real and personal property, subject only to the conditions mentioned in first two items marked “ second.” (See Matter of Fredenburg, 114 Misc. Rep. 299.) Concededly, the first of the three items marked “ Second ” gives' to her, if standing alone, such title. The third of the items marked “ Second ” provides, if the wife dies before any of the children arrive at the age of twenty-one, that all of bis property be sold and the proceeds divided into four equal shares which he gives to his children, Harry, Carrie, Charles and George, share and share alike. The third item provides that in the event of the wife’s death after either of his children have arrived at the age of twenty-one years, and they have received the sums thereinbefore mentioned, “ my estate shall be sold and the proceeds of such sale shall be divided into four equal shares and given to my children Harry, Carrie, Charles and George, share and share alike,
The provisions of the will following the gift to the wife are so inconsistent with an absolute gift that they qualify the gift to her, with the effect that she had only a life use in the property and a hen upon the share of George for the amount paid him.
The decree is, therefore, erroneous in determining that the widow was vested with the title to the real and personal property; the rights of the parties should be determined by the surrogate according to this opinion.
The decree is, therefore, reversed and the matter remitted to the surrogate for his further consideration.
Cochrane, H. T. Kellogg, Kiley and Van Kirk, JJ., concur.
Decree reversed and matter remitted to the surrogate for further consideration, with costs to the appellant to abide event.
