[114 N.Y.S. 93] C. W. Wilson, Jr., for plaintiff.
Hugo Hirsh (Ferd. W. Buermeyer, on the brief), for defendant.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
It appears that Herman Dale died on the 8th day of November, 1905, seised in fee of a certain piece or parcel of real property situate in the borough of Brooklyn, New York, leaving a widow, Sophia Dale, and four children, Aldrich J. Dale, Charles H. Dale, Emma V. Leimdorfer, and Elvina F. Diamond, his only heirs at law and next of kin. He left a last will and testament, which has been duly admitted to probate, paragraphs 3 and 4 of which are the only ones material to this controversy, and are as follows:
" Third. All the rest, residue and remainder of my estate, real and personal, and wheresoever situated, I give, devise and bequeath to my wife Sophia Dale for and during her natural life.
" Fourth. At the death of my said wife Sophia Dale, I give, devise and bequeath all my property, real and personal, and wheresoever situated, to my children Emma V. Leimdorfer, Aldrich J. Dale, Elvina F. Dale and Charles H. Dale, share and share alike, to have and to hold the same to them and their heirs and assigns forever, and in case any of my said children shall have died leaving issue, the share of the child so dying shall descend to and vest in his or her issue, and in case of the death of any child without leaving issue his or her share shall descend to and vest in his or her surviving brothers and sisters."
On the 28th day of March, 1907, the widow and the four children conveyed the said premises to Aaron Potruch, who thereafter executed a mortgage thereon to the plaintiff, which was subsequently duly foreclosed and purchased by her upon the foreclosure sale. The plaintiff thereafter entered into a written agreement with the defendant, whereby she agreed to sell, and the defendant agreed to purchase, said premises. At the time fixed for closing the title, the widow, Sophia Dale, was still living, and the defendant refused to take the title tendered and to perform the contract, on the ground that plaintiff did not have a good title to the land contracted to be conveyed, for the reason that, under the fourth clause of the will of Herman Dale, the interest of his children in the real estate was subject to being divested by their deaths prior to that of his wife, Sophia Dale, and that until the happening of the latter event it could not be determined who were the proper parties to convey good title to the premises.
The intention of the testator is expressed in language so clear that but one interpretation is possible, and, as we are to give effect to this [114 N.Y.S. 94] intent, our duty is clear. By the fourth paragraph the testator, in giving his residuary estate to his four children, intended to provide that in case any of his children should die before the decease of his wife, Sophia Dale, leaving issue, the share of the child so dying " shall descend to and vest in his or her issue." Upon his death the real estate in question vested in the children, subject to their being divested by their not surviving the life tenant. Potruch took no greater interest in the premises than his grantors had power to convey, and it was therefore liable to be divested by this contingency. The title of Annie Schwartz under the foreclosure was no better than that obtained by Potruch, and it follows that the plaintiff was unable to give a good title to the property, and judgment may be entered in favor of the defendant in accordance with the terms of the stipulation. See Lyons v. Ostrander, 167 N.Y. 135, 60 N.E. 334; Flanagan v. Staples, 28 A.D. 319, 51 N.Y.Supp. 10.
WOODWARD and MILLER, JJ., concur.
GAYNOR, J., reads for judgment for the plaintiff, with whom JENKS, J., concurs.
GAYNOR, J. (dissenting).
By the third clause of his will the testator devises the land in question to his wife for life, and then by the fourth clause, " at the death of my said wife," to his four children, " share and share alike, to have and to hold the same to them and their heirs and assigns forever." These words undoubtedly vested at the moment of the testator's death an absolute future estate in fee in each of the said children, subject to the wife's life estate. The words, " at the death of my said wife," do not refer to the time of such vesting, i.e., the vesting in interest, but only to the future vesting in possession, viz., at the termination of the life estate. Moore v. Lyons, 25 Wend. 119; Connelly v. O'Brien, 166 N.Y. 406, 60 N.E. 20; Ackerman v. Ackerman, 63 A.D. 370, 71 N.Y.Supp. 780; Davidson v. Jones, 112 A.D. 254, 98 N.Y.Supp. 265; Trowbridge v. Coss, 126 A.D. 679, 110 N.Y.Supp. 1108.
But it is said that this devise is cut down by the words which immediately follow it from an absolute vested estate, either to a contingent one, or else to a vested estate liable to be divested by the death of the devisee during the running of the precedent life estate, viz.:
" And in case any of my said children shall have died leaving issue, the share of the child so dying shall descend to and vest in his or her issue, and in case of the death of any child not leaving issue, his or her share shall descend ...