193 A.D. 523 | N.Y. App. Div. | 1920
This is an action in ejectment. Edward Livingston, at the time of his death in 1864, resided upon a farm, of 200
It is not seriously questioned that, under the terms of the will of Edward Livingston, Charles Octavius Livingston took merely a life estate. The will under which this resulted, if valid, was duly probated on the 10th day of June, 1864, giving notice of the condition of the title. In 1871 Charles Octavius Livingston, disregarding this limitation of ownership, attempted to grant the premises to one Medad Morss for the expressed consideration of $6,800. This deed purported to convey the fee, and the grantor entered into a covenant which of itself was intended to give notice of the defect in his title, for “ unusual clauses always excite suspicion ” (Broom Leg. Max. [8th Am. ed.] 289), to the effect that “ the children and descendants lawful issue of him the said party of the first part each and every of them, shall be forever estopped and barred from claiming any title estate or interest in the said lands or any portion thereof by inheritance through him the said party of the first part,” etc. The defendant through mesne conveyance from Medad Morss has been in possession of the premises involved in this action for more than twenty years, and the theory of the defense is that the-original will of Edward Livingston was void, and that this continued possession under color of title for a period of twenty years has operated to give the defendant title.
There can be no doubt that the will of Edward Livingston, by its terms, vested the fee of the farm, of which the premises in dispute are a part, in the eldest surviving son of Charles
It is to be observed that there is no penalty attached to a disobedience of this expressed desire. It is not a condition precedent to the vesting of the fee, and there is a clear implication that the devisee has the power to sell. No effort is made to provide for a reversion; there is simply a strongly expressed desire on the part of the testator to have the property kept in the family. This purpose of the testator is not a positive command, entering into the essential scheme of the will; the fair reading of the entire provision is apparently that there shall be no sale to strangers. The dominant thought is that the “ farm with the appurtenances shall remain in the possession of my family, and that the same should not be sold or pass into the possession of strangers.” He had himself provided doy the passing of the property to other nephews in the event Qf death in the line he had chosen, and for the female line to take in the event of a failure of males, and it can hardly be doubted that it would be well within the spirit of the instrument if the plaintiff in this present action should sell or give the property to his male cousin. Clearly the property would be liable for- the judgment debts of the owner of the fee; nothing in the provisions of the will operated to take it out of the control of the law, and the most that can fairly be said of the provision here under consideration is that it is a restraint or limitation upon the power of alienation •—■ not a total denial of that powe'r.
In the great case of DePeyster v. Michael (6 N. Y. 467) it was held, upon a full and careful review of the law up to that time, that by the act of October 22, 1779 (Laws of 1779, chap. 25, § 14; 1 Jones & Yarick, 44), and the act of February 20, 1787 (Laws of 1787, chap. 36; 2 J. & V. 67; 1 R. L. 70), all
It must be clear, in the light of these authorities, as well as those relied upon by the respondent, that the condition following the gift to the plaintiff in .this action, in so far as it is a restraint upon alienation, is void; that it is “ a divided clause
The fact that the plaintiff’s father undertook to grant more than he owned has no bearing on the problem. He. could not convey the fee; he was limited by the life estate which had been given him, and the rights oi his eldest son, which vested subject to contingencies upon, the death, of the testator, and became absolute upon the death of plaintiff’s father in 1914, were not disturbed or divested by any action which the defendant might have taken short of an exercise of its franchise right of condemnation. So long as the plaintiff’s father was in possession of the life estate there could be no adverse possession of the fee; during the life of the tenant for life neither his possession nor that of his grantee can be adverse to that of the remainderman. (Christie v. Gage, 71 N. Y. 189; Jefferson v. Bangs, 197 id. 35, 43.) No action which the plaintiff might have taken prior to the death of his father, the life tenant, could have availed him anything practical (,Jefferson v. Bangs, supra), and we find no element of estoppel in his remaining passive until the happening of the event which finally determined his rights under Edward Livingston’s will. The public records at all times showed that the title to this property must vest eventually in one other than the life tenant, and if the defendant, possessed of the right of eminent domain, chose to deal with one who had only the rights of the life tenant it cannot now be heard to urge an estoppel, for at the bottom of an estoppel lies either fraud, or some
The judgment appealed from should be affirmed.
Judgment unanimously affirmed, with costs.
Coke Litt. 223a.—■ [Rep.