
    Maurice E. Viele, Pl’ff, v. William H. Keeler, Def’t.
    
      Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    Will—Devise—Effect of codicil.
    By the will of one T., a portion of his estate was devised to his executors in trust for his three daughters until they became of age; upon that event each daughter was to manage and have the use of her share' during her life, and upon her death such share to pass to her children, if any, if none then to testator’s remaining aforementioned children or their descendants. In a certain contingency named the estate of the daughters was to be enlarged to a fee. A codicil provided that upon the death of the daughter the remainder should go in fee to her child or children and their descendants, and contained no provision respecting the contingency by which the life estate should become a fee. Held, that the disposition of the shares made by the codicil was the latest expression of testator’s will, and prevailed over the disposition contemplated by the will; that the daughters took only a life estate notwithstanding the happening of the contingency provided for in the will.
    Submission of controversy without action.
    Charles D. Townsend, a resident of Albany, N. Y., died on or about January 1, 1848. At the time of his death he was the owner in fee of the land mentioned and described in the agreement for the purchase and sale thereof, made between plaintiff and defendant
    The said Charles D. Townsend left an instrument purporting to be his last will and testament, consisting of his original will and two codicils thereto, which was duly admitted to probate by the surrogate of Albany county, January 18, 1848, as a will of real and personal property.
    By the provisions of the said will the said testator directed that the balance of his estate (which included the premises in question) should be divided by his executors into four equal parts, one of which he gave to his son, the said John F. Townsend, absolutely ; the remaining three-fourths he gave to his executors in trust for the use of his said three daughters, severally, to insure, pay taxes, etc., to collect and apply the income to their several use, and to invest the surplus, etc., of the income of each several share until the daughters should severally attain the age of twenty-one years.
    After attaining the age of twenty-one years, the daughters were severally required to manage their respective shares as the executors had been directed to do, and to receive and appropriate to their own several use, independent of her husband (if married), the net income accruing, during her natural life, therefrom, and at her death her aforesaid share shall pass to her surviving children, but if she leaves no children, then to pass to his other children and their descendants.
    
      But and in case any of the said daughters should marry, and her husband be found capable and pruden in the management of property, and should treat her and her family with kindness, then and in such case, the testator directed that, in addition to the life estate given her as above mentioned in her said share, she “should have the fee therein, and the absolute property and control thereof in her own several right, exclusively to possess or to dispose of by deed, will or otherwise,” etc., provided, always, that my said executors or executor acting, as aforesaid, in the execution of this will, be'fully satisfied of the existence of such traits of character in her said husband, and shall have first given to such my daughter a wiitten testimonial to that effect, and this they shall have authority to do at any time, as well after as before they have fully executed the other provisions of this will.”
    Such testimonial was executed by the surviving executor as to the husbands of all three daughters in 1872.
    The second codicil to said will is the only one which affects the title to the premises in question, and, so far as material, is in the words following:
    “After my said daughters, Helena, Maria and Sarah, shall severally have attained the age of twenty-one years, it is my will that each shall then have and hold all and singular (the real and personal property), severally apportioned to and belonging to her, according to the several clauses and directions of my aforesaid will, for and during her natural life, to her own separate use, and free from all control, etc., of any husband which she may have, with remainder in fee to her child or children and their descendants, and that she and they may have severally the free and uninterrupted enjoyment of their several portions without molestation.
    “ It is my will that each of them, if married, do possess and enjoy their respective portions aforesaid as if they were femme sole and unmarried,” etc.
    Prior to the commencement of this action, said Maria Townsend intermarried with the said Maurice E. Yiele, the plaintiff.
    In or about the early part of the year 1850, an action was begun for the partition of the real property of which the testator died seized, including the premises in question, and such proceedings were thereafter had that said property was partitioned, and a judgment rendered therein whereby an undivided half of the lot of land particularly described in the agreement hereinafter set forth, was allotted, assigned and set off to said Maria Yiele, and adjudged and decreed to be vested in her for.and during her natural life, free from any control, etc., on the part of her husband, or any husband she may have, with remainder in fee, and if no issue survived, then to the heirs at law of the testator.
    The said Maria Yiele died in December. 1889, at the city of Albany, leaving a last will and testament which was duly proven as a will of real and personal property and admitted to probate by the surrogate of Albany county, February 24, 1890.
    By said will the said Maria Yiele devised and bequeathed all her property, real and personal, to her husband, Maurice E. Yiele, she, the said Maria, dying seized the estate in question as derived through the said will of Charles D. Townsend, the said testimonial in writing, and said judgment in partition herein-before set forth.
    
      On or about July 10, 1890, the said Maurice E. Viele and said William H. Keeler entered into an agreement, in writing, for the purchase and sale of the said property therein described.
    A deed of the premises in question with the usual full covenants was duly executed and acknowledged by the said Maurice E. Viele, and in fulfilment of said agreement on his part was tendered to the said William H. Keeler, who then refused, and still refuses, to accept said deed, or to pay for said premises, upon the ground that the said Maurice E. Viele is not the owner in fee simple of an undivided half of said premises. The said Maurice E. Viele had no title to said premises excepting by, under, or through the said will of his wife, the said Maria Viele.
    The questions submitted are:
    
      First. Is said Maurice E. Viele the owner in fee simple absolute of one undivided half of the lot of land, etc., particularly described in the case and in the agreement between himself and said William H. Keeler therein set forth, and
    
      Second. Is said William H. Keeler legally bound to accept the deed of conveyance of an undivided half of said lot of land, etc., tendered to him by said Maurice E. Viele, as set forth in said case, and to pay him therefor the sum of $15,000; and is said Maurice E. Viele entitled to a judgment against said William H. Keeler to that effect
    
      S. O. Shepard, for pl’ff; Isaac Lawson, for def’t.
   Landon, J.

The will of Charles D. Townsend gave to his daughter, Mrs. Viele, for her life the possession and enjoyment of the share of his estate allotted to her, but bestowed the legal title thereto upon his executors in trust to support Mrs. Viele’s possession and enjoyment for life. The codicil to the will gave Mrs. Viele the title for her life of the same share. We pass this life estate to consider the important question whether Mrs. Viele under the will became vested of a fee in the same share, or whether it passed upon her death according to the provisions of the codicil.

The will declares that upon the happening of certain events the share of which it gives Mrs, Viele the use for life shall vest in her in fee. Subject to this contingency, which would, of course, merge the remainder in the fee, the will disposed of the remainder after Mrs. Viele’s life estate in her share. The codicil makes a different disposition of the remainder. It contains no provision respecting the contingency whereby Mrs. Viele’s life estate might become a fee. Thus, the will makes in any event full and ultimate disposition of the share allotted to Mrs. Viele. And the codicil does no less ; it bestows the share for her life and the remainder afterwards.

The disposition of the share in question made by the codicil is the latest expression of the testator’s will; the disposition is complete, and, therefore, prevails over any different disposition contemplated by the will.

This view of the case answers every opposing construction suggested by" the plaintiff.

It follows that both questions proposed in the case submitted must be answered in the negative, and that judgment be directed for the defendant, with costs.

Mayham, J., concurs.  