
    Abraham Marks, Plaintiff, v. Joseph W. Halligan, Defendant.
    
      Marketable title — what title is too doubtful to sustain an action for specific perfoi'mance.
    
    A will, which, as a whole, did not disclose any particular testamentary scheme beyond the fact that the testator intended to give a life estate to his wife as long as she remained his widow and the remainder to the children and their issue, some of the children being given an estate in fee simple and the others a life estate or an interest in income, provided as follows: “ Mfth. And the remaining five parts or five seventh parts thereof to be used and disposed of as follows, viz.: I will and bequeath to my son, William R. Soper, one-fifth of the five seventh parts for his use, benefit and behoof in trust for his children.”
    
      Held, that the question whether William R. Soper took an estate in trust or a life estate with remainder to his children or an estate in fee simple absolute was so doubtful that the court, without construing the will, considered that a person who, during William R. Soper's lifetime, had agreed to purchase property passing under the will from a person who had thus acquired title to the same would not acquire a marketable title and should not be required to take title to the premises, it appearing that children might subsequently be bom to William R. Soper who would take an interest in the premises.
    Submission of a controversy upon an agreed, statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      William H. Stoohwell, for the plaintiff.
    
      John J. Brady, for the defendant.
   Hatch, J.:

Plaintiff and defendant entered into a written contract for the sale and purchase of certain real estate on One Hundred and Twenty-fifth street in the city of New York, and plaintiff, the vendee, paid upon the contract $500 and has incurred an expense of $215 in the examination of the title, which expenditure is admitted to be reasonable.

At the time and place agreed upon by the parties for the closing of the contract and passing of title the defendant tendered to the plaintiff a deed of the premises, executed in the form and manner, provided in the contract, but the plaintiff refused to accept the same or to pay the balance of the purchase money, claiming that the defendant was unable to convey the premises by a good marketable title in fee simple.

Plaintiff demands judgment against the defendant for the sum of $500 paid upon the purchase money, and for the further sum of $215, the expense of examining the title, with interest on said sums from June 28, 1900, besides costs. Defendant demands judgment against the plaintiff for a specific performance • of the contract according to the terms thereof, with costs*

The validity of the defendant’s title to the premises in question depends upon the judicial construction of the last will and testament of Abraham Soper and a codicil thereto, and the regularity and sufficiency of a certain proceeding for the sale of. infant’s real estate, had after the testator’s death.

Abraham Soper died seized of the real estate in March, 1873, and his will and the codicil thereto were duly admitted to probate as a will of both real and personal property on April 15, 1873, by the Surrogate’s Court of the county of New York, and are recorded as siich. By his will testator devised and bequeathed all his estate to his wife for the term of her life or as long as she remained his widow, but made no disposition of the remainder. By the*codicil executed on the same day, the devise and bequest to the wife was confirmed, and the residuary estate, including the premises in .question, Was divided into seven parts and separately disposed of. The most serious question affecting the title to the premises arises under the 5th paragraph of the codicil, which is as follows :

“Fifth. And the remaining five parts or five-seventh parts thereof to be used and • disposed of as follows, viz.: I will and bequeath to my son, William R. Soper, one-fifth of the five-seventh parts for his use, benefit and behoof in trust for his. children.”

What is the effect of this provision, and what construction shall be placed upon it ? It is contended by the plaintiff that an estate in trust is intended, with no power of sale; or, if not, an estate for life in the son, with remainder over to his children ; that if a trust was created the trust term has not expired, and the court had no power to direct a sale contrary to the provisions of the will; that if an ¿state for the life of William R. with remainder over to his children was intended, William being still alive, the remainder was vested in the children of William, of whom there were two at the death of the testator, subject to open and let in after-born children, in which event the title of defendant is open to the possible attack of such after-born child or children.

It is the claim, of the defendant that the effect of this clause of the will was to vest in the son, William, an estate in fee simple absolute; that the clause, “ in trust for his children,” is void and vested no estate in the children, and did not cut down the estate vested in William by the preceding language of the clause; that, in fact, the attempt to create a trust having failed, this provision of the will is to be construed as though it were wholly omitted.

It is clear that the words of limitation appearing in this clause are insufficient to create an estate of any character, either in trust or otherwise. It is not one of the four trusts for which the statutes make provision, and it is insufficient in terms to create a power in trust, and, besides, no one is appointed to execute the same, nor is provision otherwise made to give it any force or effect whatever. It does not necessarily follow, however, that the failure to create an estate in trust is to have the effect of disregarding this language as an aid in the construction .of this provision. The rule is well settled that the whole provisions of the will and all the language contained in any particular provision may be laid hold of in order to determine the intent of the testator, and in reaching such result, void as well as valid provisions of the will may be considered. (Van Kleeck v. Dutch Church, 20 Wend. 457; Kiah v. Grenier, 56 N. Y. 220; Tilden v. Green, 130 id. 29.)

The will as a whole does not disclose any particular scheme beyond the fact that the testator intended to give a life' estate to the wife, so long as she remained his widow, and the remainder to the children and their issue. As to some of the children an estate in fee simple is devised; as to others, a life estate or an interest in income. Very little aid, therefore, is found in the other provisions of the will in reaching a construction of the clause in question, and for the most part resort must be had to its language alone. It is probably true that if there be excluded from this clause of the will the void provision, there remains language which might vest in William a fee simple absolute. The language, however, is entirely appropriate to the creation of a limited estate if any force be given to the qualifying words. The usual form for a devise in trust is first to vest an estate in fee and then qualify it by appropriate language, and if we lay hold of the qualifying clause in this .provision it indicates an intent upon the part of the testator to limit the estate in William to his life, with remainder over to his children. The language of the clause indicates with considerable force that such interpretation ought to be made. The devising paragraph is contained in one sentence and there is no division, either of punctuation or otherwise, separating the void provision from the devising words. It seems to be incapable of separation, except by arbitrary exclusion of the void provision, and unless it be so arbitrarily excluded then the language might be construed as indicating an intent on the part of the testator to limit the estate of William. The defendant, however, invokes the rule that where there is a primary devise so framed as to convey a definite and distinct estate, it may'not be cut down by later words which are ambiguous or inferential, and such is the rule of many cases. (Matter of McClure, 136 N. Y. 238; Clarke v. Leupp, 88 id. 228.)

Ordinarily, the language used to cut down the estate must be as certain in terms as that which vests the estate. Tet this rule is subject to the qualification that, as the intent of the testator is at all times the primary purpose to be arrived at, resort may be had to such language even though it be not in terms as broad by way of limitation as is the disposing clause, and such is the rule of all the cases. (Roe v. Vingut, 117 N. Y. 204.)

As resort for purposes of construction may be had to the void provision, and it appearing in a single paragraph with the disposing clause, without any separation whatever, and as it is expressive of an intent upon the part of the testator, it is at once apparent that its correct construction presents an extremely doubtful question of law, to say the least. Upon the one hand it may be said that the words of limitation are not as broad and complete as is the disposing clause, and that, therefore, it is insufficient to cut down the estate. Upon the other hand it is to be said that the language expresses intent upon the part of the testator to limit the estate. Clearly, then, a case is presented where the rule to be applied is attended with grave doubt, difficulty and perplexity. Under such circumstances it is not at all necessary that we determine the proper construction of this will. The plaintiff is entitled to a marketable title, free from reasonable doubt, .arising out of a disputed question of fact, or a doubtful question of law, where the person- who may become entitled to share in the estate is not a party to the record. (Fleming v. Burnham, 100 N. Y. 1; Vought v. Williams, 120 id. 253; Crouter v. Crouter, 133 id. 55; Greenblatt v. Hermann, 144 id. 13 ; Simis v. McElroy, 12 App. Div. 434.)

In the present case the party who may become entitled to take is not a party to the record, and whether he ever will exist depends upon the contingency of the birth of a child or children to William R. Soper. An event which may happen. If it does happen it is clear that the estate may be charged with such interest, and, therefore, a defect in the title might be created if the estate of William be held to be a life estate. The devise is to his children, and the rule under such circumstances is that, where a particular estate is carved out with a gift over to the children of the person taking that interest, such gift embraces not only the object living at the death of the testator, but all who may subsequently come into existence before the period of distribution arrives. (2 Jarman Wills [5th Am. ed.] *156; Schouler Wills [3d ed.], § 529 ; Stevenson v. Lesley, 70 N. Y. 512; Moore v. Littel, 41 id. 66.)

• This discussion serves to show that the defendant has not tendered to the plaintiff a marketable title, free from reasonable doubt.

So far as the proceedings for the sale of the infant’s interest in this real estate are concerned, it is quite probable that no defect of the title is created. (Aldrich v. Funk, 48 Hun, 367; Cole v. Gourlay, 79 N. Y. 527.)

If these views are correct it follows that judgment should be directed for the plaintiff for the amount of the purchase money already paid, together with the costs and expenses of examining the title and the costs of the action.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment ordered for plaintiff, with costs.  