10 N.Y.S. 77 | N.Y. Sup. Ct. | 1890
Osman W. Atkins, on the 7th day of September, 1871, conveyed a large landed estate to his brother, the defendant. The deed was absolute. The grantor bad a wife and two very young children. The consideration expressed was $3,000, and the wife of the grantor- joined in the deed. In November following, and after the death of Osman W. Atkins, the defendant executed a declaration of trust in the land. In September; 1872, another declaration of trust was executed by defendant in respect to the same land. The declarations are substantially alike. The trust was expressed to be for the sale of the land for the best interest of widow and children of grantor, in the judgment of the trustee. One-third of the income was to go to the widow for life, and the remaining two-thirds to be equally divided between the two children of grantor. The trust was to terminate when the youngest child should be 21, and then the estate was to be conveyed to the children subject to the dower rights of grantor’s wife, and the proceeds of land sold were to be paid over to the children after the widow’s claim therein was paid. The declaration of trust contains this clause, out of which the controversy arises: “Fifth. In case of the death of both of said children before the age of maturity, then I am to convey all and every part of said property then remaining unsold, and to pay over all income and proceeds of sales in my hands, deducting charges and expenses, to said Cordelia, for her sole use and benefit, forever.” The widow died in 1873. The two children were both drowned in 1881, at the ages of 10 and 11 years, respectively. The widow took no remainder in the estate which existed if she died before the children, and they died during their minority. The scheme of the transaction waS to create a title for the better management of the lands during the minority of the children. One-third of the proceeds was to go to the widow, and the two-thirds was to be applied to the necessities of the children. The trustees could, by the terms of the trust, terminate the same with the wife’s assent, and convey the lands to the infants “subject to the life-use of said Qordelia in one-third thereof.” The trustees could, by the terms of the trust, pay a gross sum to the widow, and then convey to the children and to their heirs forever, equally. By the terms of the deeds of trust, when the trust terminated by the limitation of the same the conveyance was to be made to the children, “subject to the dower rights of the said Cordelia. ” The provision that the mother shall take in case of the death of both children during minority was not intended to create an estate in her, unless she survived the children. This contingency never happened. If she had survived her children, the trust-deeds would have' carried the estate to her, and so would the statutes of descents, without the deed. In other words, the wife and children would be left, as to the succession, as if no deeds existed. Hennessy v. Patterson, 85 N. Y. 91. The gift over was of land to one John Foley, if the testator’s daughter die without child or children. Foley died before the daughter, and the daughter left no children at her death. The court of appeals held that Foley had a contingent remainder w'hich vested in him at the death of the testator, and which descended to his heirs. The case is notan authority for the judgment appealed from. If the construction be held that no estate was created in the widow except her dower rights, there was no contingent or expectant estate to be considered, under the case of Hennessy v. Patterson. The dower right, of course, would not be such an estate, under the circumstances proven in the
We conclude, therefor, that the widow, at the time of her death, left no estate, expectant or contingent, which survived her. These views render unnecessary an examination into the evidence claimed to support a finding that one of the children survived the other. The judgment should therefore be reversed, and a new trial granted at special term; costs to abide event.
