106 N.Y.S. 713 | N.Y. App. Div. | 1907
•It is obvious from the foregoing statement that the appellant' only has such title to the farm as Mrs. Stover could convey after the death of her daughter, Mrs. Galusha, except as. to the undivided one-sixth interest hereafter discussed. Under the Devised Statutes (1 R. S. 752, § 6), which were revised in the Real Property Law (Laws of 1896, chap. 547, § 285), Mrs. Stover inherited from Mrs. Galusha only a life estate in the property with the remainder to the other heirs of the latter.
But in the deed from Mrs. Stover to Mrs. Galusha the former reserved the right to her comfortable maintenance on the farm. This right was of a personal character. It was clearly expressed in the deed that such maintenance should be in the family of Mrs. Galusha and this idea was farther emphasized by the provision that the latter should not convey the premises during the life of Mrs.. Stover without her consent. When Mrs. Galusha died such arrangement was no longer capable of execution in the manner contemplated by the parties. That fact,' however, did not deprive Mrs. Stover of the benefit of her reservation. She continued to be
The' right of maintenance reserved by Mrs. Stover for herself in her deed to her daughter and her statutory life estate as heir of her daughter should not in my judgment be either added or subtracted. But the equitabli charge for the maintenance of Mrs. Stover'constitute'd an incumbrance on the entire property, and both her life estate and the remainder, in proportion to their respective values, were subject thereto. Mrs. Stover as life tenant had the use, control- and management of the farm while she lived and it. was of no consequence to the remaindermen • whether she lived on the farm or elsewhere. The reasonable value of her maintenance, according to her station in life and of the general character contemplated in her deed to her daughter, was chargeable against the interests of the remaindermen to the extent above indicated.
Both these rights, viz., the equitable right of Mrs. Stover to have the value of her maintenance enforced against the farm and her life estate in the farm, were transferred by her conveyance to Mr. Galusha and by the subsequent mesne conveyances to appellant. The error of the court below consists in having ignored the reservation of Mrs. Stover in her deed to her daughter and treating the case as if the appellant had only acquired the statutory life estate of Mrs. Stover. It is evident from what has been said that the appellant has a present lien on the property for some part of the value of Mrs. Stover’s maintenance. As the value of the life estate was not established at the trial, and as there is no finding as to the value of the farm, the amount of such lien of the appellant cannot now be stated. But it was clearly error for the trial court to find as it did “ that upon the death of said Phoebe Stover all the right, title and interest of said Samuel Morgan in said premises ceased and determined,” and to render judgment accordingly.
The judgment is also wrong in adjudging that the undivided one-sixth part of the premises acquired by Daniel Galusha after his conveyance thereof belongs to his widow and heirs. He had previously conveyed the farm by a warranty deed purporting' to convey the entire title and the appellant succeeds to the title thus
The interlocutory judgment must be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Interlocutory judgment reversed on law and facts and new trial granted, with'costs to appellant to' abide event.
