135 N.Y.S. 334 | N.Y. App. Div. | 1912
This is a submission of controversy pursuant to section 1279 of the Code of Civil Procedure. In 1898 Metzendorf died testate, seized in fee of a certain parcel of realty. The will reads as follows: “First. That after my lawful debts are paid, I give and bequeath unto my beloved wife, Catherina Metzendorf, all my property, real and personal, of what kind and • nature soever, and wheresover, of which I shall die seized and possessed, and to which I shall be entitled at- the time of my decease, to hold and to enjoy the same during the term of her natural life, provided she remains my widow. And after the decease of my said wife Catherina I give and bequeath Second. My said property, unto my children, then living, or to their heirs in equal parts, share and share alike. But in the case my wife Catherina Metzendorf should contract marriage again, then and in such case, she shall have only the right to dower and no more. I hereby appoint my said wife, Catherina Metzendorf, to be Executrix of this my last will and testament, hereby revoking all former wills by me made.” The testator was survived by his said wife and five children, and they all are
We are of opinion that" upon the death of the testator remainders were vested in his children respectively, subject, however, to divestiture as to any child that predeceases the life tenant. (Lyons v. Ostrander, 167 N. Y. 135.) We think that the widow and children could not convey a marketable title in fee, and for that reason there should be judgment for the plaintiff for $300, with costs, in accordance with the terms of the submission. (See Harris v. Strodl, 132 N. Y. 392-397; Kilpatrick v. Barron, 125 id. 751.)
Hirschberg, Thomas, Carr and Rich, JJ., concurred.
Judgment for plaintiff for $300, with costs, in accordance with the terms of the submission.