122 N.Y.S. 718 | N.Y. App. Div. | 1910
The action is in partition, and the plaintiff’s right to maintain it at all depends upon the construction of the will of Stephen Dady, deceased. By that instrument he gave to his wife Lucy during life the use of all of his property. Upon the death of his wife he devised “ the use and benefit ” of his residence to Mrs. Emma Belle Van Deusen “ for and during her natural life.” The 3d clause of his will is as follows: “At the death of the said Emma Belle Van Deusen, or in case she should die before the death of my said wife Lucy E.-, then at the death of my said wife, or in case I should
The testator died in September, 1904, and his widow two months later. At the time of the death of the testator, Mrs. Van Deusen, the second life tenant, had six children. The three youngest were girls, all minors when he died, the youngest being about eleven years.
Did the devise Vest in the three youngest children of Mrs. Van Deusen upon the death of the testator, subject to the life estates, so that only the enjoyment of the property by these children was deferred until the termination of the life tenancies? If so, the plaintiff, holding as tenant' in common a vested remainder, may maintain the action; and, as Mrs. Van Deusen has duly consented, a sale may be had. (Code Civ. Proc. § 1533.)
On the other hand, if, as appellant claims,, the estate is contingent, not vesting at all until the death of Mrs. Van Deusen, the action cannot be maintained by the plaintiff for she is not now the owner in fee and may never have any title.
The construction will be preferred which vests the title, immediately upon the death of the testator. (Connelly v. O'Brien, 166 N. Y. 406; Matter of Russell, 168 id. 169, 175; Moore v. Lyons, 25 Wend. 119.)
This construction, prevents disinheritance in case of the death of a remainderman prior to the termination of the life tenancy, and fixes unalterably the identity of those entitled to the fee, instead of léaving the passing of the estate uncertain and in the air until the intervening estates are determined.
-The 3d provision of the will provides that at the death of Mrs. Van Deusen, or in case “I should survive * * * said Emma Belle :-, then at my death I give * * * said house and lot and land to the three youngest children then living of the said Emma Belle Van Deusen.” The phrase “then living” refers to the death of the testator, which he has already mentioned. • Ho matter if the- words “at my death” are parenthetically inserted,
In my judgment this construction coincides with the intention of the testator. The three youngest children were daughters, under age and unmarried. The two eldest were of age and married at the time of the death of the testator. While the son Rex was also under age, the testator had bequeathed to him his watch and chain, and the 7th provision of the will denotes that he was the recipient of the bounty of the testator.
The interlocutory judgment should be affirmed, with costs. .
All concurred.
Interlocutory judgment affirmed, with costs.