
    DITMAS v. BAAS.
    (Supreme Court, General Term, Second Department.
    December 12, 1892.)
    1. Construction on Will—Conditional Devise. A testator devised land for 10 j'ears, and provided in his will that at the end of that time the devisee should pay his estate $6,000 if he wish.ed to buy the land. Held, that on default of the devisee to pay the money, the land descended to the testator’s heirs.
    2. Executors and Administrators—Right to Retain Deeds. Where land is devised for a term of years, and the remainder descends to the testator’s heirs, the testator’s executor, after expiration of the devised estate, has no right to retain, as against a purchaser from the heirs, an unrecorded deed conveying said land to the testator.
    Appeal from special term, Kings county.
    Action by Henry C. Ditmas against Berend Baas, individually, and as executor of Wilhelm Bouthrup, deceased, to obtain possession of an unrecorded deed to said Bouthrup from Catharine E. Cropsey and her husband. Bouthrup devised the land conveyed by the deed to Baas “ for the term of 10 years,” and the will further declared: “ I hereby direct that, at the expiration of said term, he, his heirs or assigns, shall pay to my estate the sum of $6,000, should he or they desire to purchase the property.” Baas did not pay the $6,000, and the heirs of Bouthrup sold the land to Ditmas, who, after expiration of the 10 years, brought this suit. The lower court held that, at the expiration of the 10 years, Baas, not having elected to become the purchaser at $6,000, had no right, title, or interest in the property, and had no standing to defend the suit. Judgment for plaintiff. Defendant appeals. Affirmed.
    Argued before BARNARD, P. J., and PRATT, J.
    Benj. G. Hitchings, for appellant.
    Frederick W. Holls, for respondent.
   PRATT, J.

We think the court below correctly construed the will, and that, upon the election of Baas not to purchase, the land descended to the heirs at law of the testator. As purchaser of the estate from the heirs at law, Ditmas had a right to the possession of the deed to his predecessor in the title. The judgment must, therefore, be affirmed; but, as the executor has mistaken his legal rights, the affirmance may be without costs.  