| N.Y. App. Div. | Jul 1, 1897
The true construction- of the will of Christopher Iiuss, the common ancestor of the parties, from whom they have obtained title to the premises sought to be partitioned, is riot free from doubt. The subject will stand much more discussion and- examination than the 'counsel have seen fit to bestow upon it,- possibly for the reason that the .point hereinafter suggested had not. been called to the attention of-the attorney. We do not think it necessary to determine fully, what construction should be placed upon the will,.in the absence of parties who maybe affected by our decision. We are entirely clear that in any aspect of the case there is a fatal defect of .parties, in-that Elizabeth Welch is .not a party to the action. ......;
It is true that there is a. clause of the will disinheriting' lieiybiut the share which she might have taken in her father’s estate is not otherwise devised, and in the remote but possible contingency of intestacy she would' be entitled to inherit. (Haxtun v. Corse, 2 Barb. Ch. 521.)
The devise, upon the death of the testator’s wife, is: “ That then my said real and personal estate shall be equally divided, share and share alike, between my wife’s children and my children-then living, or their heirs,” etc. It is not necessary now to decide, whether the provision, “ or their heirs,” should be construed as a gift of substitution to the issue of the children who' might die before-the;, .death of the wife. We tliink.it entirely clear that none of the children of' the testator and his wife could take under this*' devise unless living at the death of the wife. ■ .The .question is not whéther the remainder'is vested or contingent. ‘ Evén assuming it to be vested, the question is, whether it is subject to divest by the death of the remaindermen before that of the widow. The case of Patchen v. Patchen (121 N.Y. 432" court="NY" date_filed="1890-06-03" href="https://app.midpage.ai/document/patchen-v--patchen-3612128?utm_source=webapp" opinion_id="3612128">121 N. Y. 432) is conclusive on the question that the term “ then,” used in this clause, refers to the death of the widow. The argument' that the widow by conveying, her life estate could change or alter the ' rights of the parties in the remainder upon her death, is plainly' untenable and needs no serious discussion. If at the death of. the widow none of the testator’s children and none of her own children be surviving, then, unless the devise to the heirs is substitutionary, as suggested, the devise would fail, and the remainder pass to the testator’s heirs at law. But if the gift to their heirs should be con
As to the grandchildren', as already stated, we decline to now ■determine their rights. We, however, suggest to the parties whether it would not be wiser to bring such, grandchildren into the action that they may be concluded by any judgment rendered herein. Otherwise, it may well be that the purchaser on a sale under the judgment will not be compelled to take title; all the more that the ■courts uniformly hold that a purchaser at a judicial sale will not be compelled to take a doubtful title. (Toole v. Toole, 112 N.Y. 333" court="NY" date_filed="1889-01-29" href="https://app.midpage.ai/document/toole-v--toole-3592468?utm_source=webapp" opinion_id="3592468">112 N. Y. 333.)
The judgment should be reversed and a new trial granted, costs to abide the final award of costs.
• All concurred.
Interlocutory judgment reversed and new trial granted, costs to abide the event.