
    Nancy L. Green, Gelette I. Wilcox and Mary E. Wilcox, Plaintiffs, v. Emma A. Head, Attie D. Fleming, Clarence C. Green and Amos L. Green, an Infant, Defendants.
    (Supreme Court, Madison Special Term,
    May, 1907.)
    Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests and vesting, etc.— General rule as to vesting — When contingent.
    Partition: Procedure for partition — Parties — Plaintiffs — Joinder of contingent remaindermen: Decision, judgment and relief — Costs and expenses.
    Where a testator gave to his widow the use of all his property real and personal, during her natural life or while she should remain his widow, and further provided that after she should be through with the use thereof if his son would take the same and pay to each of his three daughters a certain sum, he should have the use of the farm as long as he might live, but that he should have no power to sell or encumber the farm and at his death his children, should he leave any, should have the farm in equal shares, but if he should die without' "issue it should be divided equally among his daughters, and in case his son should not choose to pay the sums named to his daughters then the property should be divided equally among his four children, and where, during the life of the testator’s widow," his son conveyed his interest in the property by a deed expressing his intention to convey all his right, title and interest which he took under the will of his father or as his father’s heir at law, held:
    Under the will none of the testator’s children took a vested interest in remainder.
    The widow and one of the daughters could not maintain an action for the partition of his lands.
    The widow, if technically entitled to maintain an action of partition, could not join with her the testator’s children as parties plaintiff.
    It seems that, if the fee of the premises should be sold in an action for partition brought by the widow, the entire costs and expenses and accumulated taxes should be paid out of her share.
    Action for partition.
    
      Senn & Devitt, for plaintiffs.
    George B. Russell, for guardian ad litem.
    
   Coman, J.

This action has been brought to procure the partition or sale of certain real estate, situate in the town of Lebanon in this county, comprising a farm of the value of about $4,000.

The complaint alleges in effect that the property in question is owned by the plaintiffs Gelette I. Wilcox and Mary E. Wilcox and the defendants Emma A. Head and Attie D. Fleming, subject to a life estate or an estate during her widowhood of the plaintiff, Nancy L. Green.

The facts are that, in the year 1894, one Amos L. Green, a resident of said town of Lebanon, died seized and possessed of the premises in question. He left a last will and testament which has been duly admitted to probate and left him surviving the plaintiff Nancy L. Green, his widow, and the plaintiff Mary E. Wilcox, and the defendants Attie D. Fleming, Emma A. Head and Clarence C. Green, his only heirs-at-law.

By the terms of his will, he gave to the widow, Nancy L. Green, the use of all his property, real and personal, during the term of her natural life, or so long as she should remain his widow. The will then contains this provision: “After my wife Nancy L. Green shall be through with the use of the farm and personal property that may be left, if my son Clarence C. Green will take the farm and personal and pay to each of my daughters as follows, viz: Mrs. Attie D. Fleming, Mrs. Mary E. Wilcox and Mrs. Emma A. Head the sum of $600.00 each one, he shall have the use of said farm so long as he may live. But he shall have no power to sell or in any way whatever to encumber said farm. At his death his children, should he leave any, shall have the farm equally divided between them should there be more than one. In case he should die without issue then the farm shall be divided equally among my three daughters heretofore mentioned in my will or their heirs. In case he should not choose to pay the sums named to my three daughters then the property shall be divided equally among my four children share and share alike in whatever may be left at the time my wife is through with it at her death.”

Nancy L. Green, the widow, is still living. The defendant Clarence C. Green has, at this time, only one child, to wit, the defendant Amos L. Green, who is an infant. The wife of the defendant Clarence C. Green has secured from him an absolute divorce, and the custody of the infant child has been awarded to her.

Prior to the commencement of this action and on the 21st day of April, 1905, the defendant Clarence C. Green, in consideration of the sum of $400, executed and delivered to the plaintiff Gelette I. Wilcox a quitclaim deed of all his interest in the property described in the complaint. At the end of the description contained in the deed occurs the following clause, to wit: “ Meaning hereby to convey to the said party of the second part all my right, title and interest in and to the aforesaid lands and premises which I took under the will of my father, the late Amos Green, or as heir at law of said Amos Green.”

It" is claimed by the counsel for the plaintiffs that, by thus selling and conveying his interest in the property in question, the defendant Clarence C. Green elected not to accept the life estate devised to him upon the terms and conditions imposed by the will. I do not think that there is any foundation for this contention, but I shall not discuss it as, in the view that I have taken of the case, it is quite immaterial.

I do not think there can be any serious dispute as to the intent of the testator or as to the legal effect of the provisions quoted from his will. After devising a life estate or an estate during widowhood to Haney L. Green, and a second life estate to Clarence O. Green, upon the performance of a certain condition precedent, he devised the remainder to the children of Clarence 0. Green who should survive him. He then provides for a substitutional fee in remainder to his four children, in the event that Clarence C. Green shall not accept the life estate devised to him upon the conditions imposed. These provisions seem to be valid under section 41 of the Real Property Law relating to “Future Estates in the Alternative.” It happens at this time that Clarence C. Green has only one child, but as the remainder has not vested and cannot vest until either the death of Clarence C. Green or until such time as he lawfully makes his election, other children may be born to him in the meantime, or the defendant Amos L. Green may die and leave issue; and it thus becomes apparent that persons not now in being may become the owners of the remainder. All that can now be said is that Amos L. Green is the presumptive owner of the remainder in fee.

Section 41 of the Real Property Law provides: “An expectant estate can not be defeated or barred by any transfer or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseizin, forfeiture, surrender, merger or otherwise; but an expectant estate may be defeated in any manner, or by any act or means which the party creating such estate, in the creation thereof, has provided for or authorized.”

Unquestionably the will created an expectant estate in fee in the defendant Amos L. Green. The plain intent of the testator was that the remainder should not vest during the lifetime of the widow. In the nature of things, the contingency upon which the vesting depended could not arise during the lifetime of the widow. The testator, in the creation of the expectant estate, did not provide for or authorize any manner in which Clarence C. Green could destroy or defeat it, except by his refusal to accept the life estate devised to him when the time arrived for him to make his election, to wit, upon the death of" the widow. In the meantime, he cannot defeat or bar or impair the rights of the infant. Doubtless he could convey his own expectant estate or interest (Real Property Law, § 49), but that is the extent of his power. Whether such a conveyance carries with it the right to elect which of the estates granted by the will his grantee will accept, it is unnecessary now to determine; but it seems reasonably clear that, if Clarence C. Green shall not survive the widow, the remainder will vest in Amos L. Green, subject to the payment of the legacies to the testator’s daughters and that, if he should still he an infant and an election on his part became necessary, such election could he made for him by the court. 11 Am. & Eng. Encyc. of Law (2d ed.), 77.

I am confirmed in the correctness of these views by the manifest injustice which would result from any other conclusion. That the father of this infant may at some time he able, by his act of election, to destroy and defeat the interests of Ms child in this estate is quite possible, and the motives which prompt such action will he quite immaterial; but the courts cannot be asked to make a. strained or forced construction of this will for the purpose of hastening the accomplishment of that purpose.

It follows that, as neither of the parties has a vested interest in the remainder, this action cannot be maintained. It is possible, though doubtful, that, under section 1533 of the Code of Civil Procedure, the plaintiff Nancy L. Green is technically entitled to maintain an action for the partition of this property; but, even if such an action could be maintained by her, the plaintiffs Gelette I. Wilcox and Mary E. Wilcox are not proper parties plaintiff to such an action. If she desires to sell her life estate, there is no reason why she cannot sell it at private sale; and, as was said in the case of O’Toole v. O’Toole, 39 App. Div. 302, 307, where very similar conditions were disclosed, there does not appear to be any reason shown why the fee should be sold at all; but, if it were to be sold in such an action as suggested, then the entire costs and expenses of the action and the accumulated taxes, etc., should be paid out of the plaintiff’s share.

Judgment should he entered dismissing the complaint, with costs in favor of the guardian ad litem against the plaintiffs, to he taxed.

Judgment accordingly.  