37 N.Y.S. 1107 | N.Y. App. Div. | 1896
To determine the question presented by this appeal, it is important to ascertain the intention of the testator in the use of the language found in the fifth clause of his will.
By the provisions of the Revised Statutes (volume 1, p. 722), it is provided in section 7, viz.:
“Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy.”
Section 8:
“An estate in possession, is where the owner has an immediate right to the possession of the land. An estate in expectancy is where the right to the possession is postponed to the futuro period.”
Section 35 provides:
“Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession.”
Manifestly, the testator intended to give and devise to his son, George, the lands mentioned in the fifth clause of the will, “to have and to hold the same during the term of his natural life”; and it is equally clear, by the language used, that the testator intended, in case George left, him surviving, child or children, the lands
We think the language of the whole of the fifth clause, when taken together, falls within the principle of Hennessy v. Patterson, 85 N. Y. 98, and that the language used by Finch, J., in that case is applicable here:
“When the person to whom a remainder after a life estate is limited is ascertained, and the event upon which it is to take effect is certain to happen, the remainder is vested.”
And, in accordance with the doctrine of that case, we are inclined to think the remainder which vested in the grandchildren was contingent, “but, nevertheless, an expectant estate, as defined by the Revised Statutes, and, as such, alienable”; and that the interest which the two grandchildren derived at the time of their death descended to their heirs, and vested in the other grandchildren.
In Mitchell v. Knapp, 54 Hun, 500, 8 N. Y. Supp. 40, it was held that, in order to defeat the vesting of a bequest or devise, a very clear intention should be shown. That case was affirmed in 124 N. Y. 654, 27 N. E. 413, on the opinion delivered at the general term.
See, also, Piet v. Willson, 134 N. Y. 140, 31 N. E. 336, and cases cited.
In 1 Rev. St. 723, § 13, it was provided, viz.:
*1109 “Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate.”
The case of Smith v. Edwards, 88 N. Y. 92, differs very essentially from the one now in hand. In that case the testator named executors, and directed that they keep invested until his youngest grandchild “now born, or that may hereafter be born before final distribution of my estate, shall be of full and lawful age”; and then, by a subsequent clause, he fixed the date of the final distribution; and it was held that the whole bequest was invalid because it suspended the absolute ownership for more than two lives in being at the death of the testator. We think the case does not aid the contention of the respondents.
The case " Warner v. Durant, 76 N. Y. 133, differs very essentially from the one now in hand. There the testator provided that his gift was to be several from the general estate, and be held by the trustees for a specified time, for the benefit of the legatee, and then to be paid over to him; in the meantime the interest thereof to be paid to him. It was held that this was indicative of the intent of the testator that the legatee shall, at all events, have the principal, and is to wait only for the payment until the day fixed. It was held, however, in that case, that the legacy vested in the legatee immediately upon the death of the testator, and passed to his principal representatives. We see nothing in the case which sustains the contention of the respondents.
The foregoing views lead to the conclusion that the learned trial court was in error in finding, as conclusion of law, that the “title to the premises did not vest in the grandchildren until the death of said George H. W. Harter,” as we are of the opinion that the grandchildren, upon the death of the testator, took a vested interest in the lands mentioned in the complaint.
Interlocutory judgment reversed, and a new trial ordered, with costs of the appeal to abide the final award of costs. All concur.