47 Barb. 304 | N.Y. Sup. Ct. | 1866
The will gave the widow of the testator an estate in the farm in question, for and during her life, and after her death it gave the farm to Ellen Rose, during her life, and, if she should have a child, it gave her the farm in fee. The widow and Ellen Rose were both living at the time the will was made, and the devises to them were valid, unless the attempt of the testator to give the husband of Ellen Rose an estate, during his life, in the farm, if she should die without having issue, previous to the decease of her husband, destroys those devises. The statute is, “ where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estates had been created.” (1 B. S. 723, § 17.) The devise of a life estate in the farm to the husband of Ellen Rose, if she should die without issue, was void ; for by giving it effect, the will would suspend the absolute power of alienation of the farm for the period of three lives in being at the time it was made, which could not be done. (1B. 8. 723, § 15.) But the previous devises of estates in the farm, for and during the lives of the widow and Ellen Rose, were valid; for -the statute only declares that “every future estate shall be void in its creation,” which shall suspend the absolute power of alienation for a longer period than during the continuance of two lives in being at the creation of the estate. (1 B. 8.
The devise of the farm to Ellen Eose for life, being valid, it follows that the provision of the will, declaring that in case she has children, the farm “is secured to her and them for ever,” is also valid; and should she have a child she would take the farm absolutely in fee.
The clause in the will, that in case EEen Eose shall have no children, the farm shall be divided, at the death of her husband, equally among the rest of the testator’s children, will entitle such children to the farm absolutely, on the death of Ellen Eose without having any issue. It is provided by statute, “when a remainder shaU be created upon any such life estate, and more than two persons shall be named as the persons during whose Eves the life estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other Eves had been introduced.” (1 R. S. 724, § 19.) According to this statute, upon the death of both the widow and Ellen Eose, the absolute title to the farm in question, wiU vest in the rest of the testator’s children, if Ellen Eose should not have a child, in the same manner as if nothing had been said in the will respecting a life estate in her husband.
I am of the opinion the evidence justified the judge in holding that the stipulation, executed by Ellen Bose, setting aside the "will in question and declaring it null and void, was obtained under such circumstances that it was not binding upon her. Whether it would have bound her if she had known its contents, when she signed it, need not be determined.
The plaintiffs did not have such an interest in the farm as entitled them to a partition or sale of it. (15 N. Y. Rep. 617. 2 Barb. Ch. 398.)
A person must be seised of an estate in remainder or reversion, to maintain an action of waste for an injury done to the inheritance, when there is an intervening estate for life or years. (1 B. 8. 750, § 8.) But it is claimed that the plain- _ tiffs are entitled to equitable relief, and should have an opportunity to show that the defendants, Ellen Bose Cook and her husband, are committing waste upon the farm, and have an injunction to restrain those defendants from committing waste thereon. It is true that a court of equity will sometimes interfere to prevent waste, when the party complaining could not maintain an action at law, against the wrongdoer. And I will not say but the situation of the brothers and sisters of Ellen Bose is such as would entitle them to an injunction, to restrain her and her husband from committing waste on the farm in question; for they will have the absolute title to the farm if Ellen Bose should die without having issue, and she may not have any. {Bee 2 Story’s Bq. Jur. § 914.) But the plaintiff, Ann Woodruff, is not a child of the testator, and is not entitled to any relief for any waste committed or threatened to the farm. I am therefore of the opinion that the case should not be sent back to the special term, to allow
There was no necessity for bringing this action to obtain a construction of the will in question, and it could not be maintained without the aid of the statute of 1853. (See Bowers v. Smith, 10 Paige, Ch. 93; Onderdonk v. Mott, 34 Barb. 106.) But I am constrained to hold that the act of 1853 authorized the plaintiffs to bring this action. (Laws of 1853, _p. 526.) This act is not cited by counsel for either party, and it is not probable the attention of the judge was called to it, at the special term.
The action was brought for the exclusive benefit of the children of the testator, other than the defendant Ellen Bose, and claims are made in the complaint, which are not sustained, and which rendered it necessary for Ellen Bose and her husband to defend the action. It is therefore a case in which each party should pay their own costs. (9 Paige, 211. 2 Barb. Ch. Pr. 322.)
My conclusion is, that the judgment in the action should be reversed, and one entered construing the will in question in conformity with this opinion, without costs to either party.
My brethren concur in the foregoing views, except that they are of the opinion the statute of 1853 does not authorize the plaintiffs to maintain this action. And the judgment in it is therefore affirmed with costs. To which affirmance I dissent.
Parker, Mason, Balcom and Boardman, Justices.]