6 N.Y.S. 158 | N.Y. Sup. Ct. | 1889
This is an action for the specific performance of a contract in writing for the conveyance of real property. The plaintiff in the action claimed to be the owner of the premises involved, and entered into a written agreement to sell and convey the same to the defendant, who agreed to purchase, but who subsequently refused to consummate the agreement under an apprehension of a defect in the title, based upon the folio wing facts: In the year 1857 ■one John Francis Flazzelarddied seised and possessed of the premises, leaving a wife, three minor children, and leaving a last will and testament, which reads as follows, so far as it affects the question to be solved in this action: “I give and bequeath to my sons Cyrus and Eli and Edward one dollar each. I give and bequeath to my wife, Ellisheba, all my household furniture, and all ¡the rest of my personal property, after paying from the same'legacies already
The first part of the devise vests the absolute title of the real estate in the wife of the testator, and, where the language of a will indicates a disposition to give the entire interest and use of property to the primary devisee, it will not be curtailed without words which manifest a clear intention to cut it down. Clarke v. Leupp, 88 N. Y. 228; Roseboom v. Roseboom, 81 N. Y. 356. As, therefore, the devise of the remainder of the real estate of the testator to his children was upon the contingency of the death of the wife without having disposed of the property, and as it was the intention of the testator to give his wife an estate in fee in his real property, and the words employed demonstrate such intention, she could sell and convey or incumber the same as an incident and result of her absolute interest therein. This construction of the will renders the same harmonious and effective in all its parts and provisions, but, if more was intended for the children than a contingent interest or remainder, then the limitation of the primary devise was inconsistent with the absolute gift to the wife, and therefore void. In this state the earliest discussion of the principles involved here arose from the will of William Alexander, who was a prominent officer in the American army in the Bevolutionary war, under the name of Lord Sterling. In that will the language was this: “1 give, devise, and bequeath all my real and personal estate whatsoever unto my dear wife, Sarah, to hold the same to her, her executors, administrators, and assigns; but, in case of her death without giving, devising, or bequeathing by will, or otherwise selling or assigning, the said estate, or any part thereof, then I do give, devise, and bequeath all such estate, or all parts thereof as shall so remain unsold, undevised, or unbequeathed unto my daughter, Lady Catharine Duer, the wife of the Honorable William Duer, Esq., of the state of Flew York, to hold the same to her, her executors, admin-
Thus far, therefore, the case is plain, but the examination has been independent of the effect of our Revised Statutes, (1 Rev. St. p. 725, §§ 32, 33,) upon the rule of the common law. ®Those sections are as follows: “Sec. 32. No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger, or otherwise. Sec. 33. The last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner, or by any actor means which the party creating such estate shall in the creation thereof have provided for or authorized, nor shall an expectant estate thus liable to be defeated be on that ground adjudged void in its creation.” At the common law, as we have seen, where an estate was given to a person generally, with a power of disposition, expressed or implied, as in this case, it invariably carried a fee, and a valid executory devise could not subsist under such absolute power of alienation, and the effect of these sections of tile statute is to modify that rule. Now, an expectant estate in lands will not be adjudged void because it may be defeated in any manner provided by the party creating the same. Expectant estates may be created, which may be defeated by any means authorized by the party creating them. In any ease, therefore, where an expectant estate can be lawfully created or devised, it will not be adjudged void in its creation because the party creating the estate in doing so, or in its creation, provided a means1 or prescribed an event by which it might be defeated. In other words, a valid executory devise may now be made to depend upon the non-execution by the primary devisee of an absolute beneficial power of disposition, vested in him by the will creating the limitation; and therefore a valid executory devise may now subsist under an absolute power of alienation in the first taker, and so far the rule of the common law seems to be changed by the statute. Greyston v. Clark, 41 Hun, 125; Terry v. Wiggins, 47 N. Y. 518, 2 Lans. 275; Bell v. Warn, 4 Hun, 408. Such change, however, does not affect this case, because under the will in question the Wife of the testator was vested with the power of absolute alienation of the property during her life-time, without restriction in respect to the purposes of such disposition. There was no limitation upon the power of disposition except a limitation of time. So long as it was exercised during the life-time of the wife its execution was valid. She might not exercise the power by will, because the testator disposed of the portion remaining at her decease by giving it to his children. Flanagan v. Flanagan, 8 Abb. N. C. 413. Such being the intention of the testator, it must be carried out as well under the statute as at common law. Our conclusion, therefore, is that the wife of the testator took a fee in the premises in question under the will of her husband, subject to the condition that the power of disposition should be exerted during her life-time, (Campbell v. Beaumont, 91 N. Y. 464,) and that the children took a valid expectant estate, liable to be defeated by the exercise of the power of disposition vested