
    Addie La Chapelle, Resp't, v. Mary Burpee, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Will—Devise to one imprisoned for felony.
    One imprisoned for a term of years may take or convey by grant or devise, and the power to take implies the power to accept.
    3. Same—Acceptance of devise—Title.
    A will gave a home to testator’s widow for life and also one to his daughter as long as she remained single, and conveyed the house to his son on condition that after he was liberated from prison he should live in the house with his mother and sister and furnish firewood and board for them, and provided that if he elected not to accept the provision, the property might be sold. The son was then imprisoned for felony, but was pardoned and accepted the devise. Held, that there was no suspension of the power of alienation ; that the son could accept the devise at once subject to the condition, which was a condition subsequent; that the title vested in him immediately on his father’s death, and that a conveyance by the widow and son,, the daughter having married, conveyed a good title.
    Appeal from judgment awarding possession of certain real estate to plaintiff in an action of ejectment.
    
      Charles R. Patterson, for app’lt; Delcour S. Potter, for resp’t.
   Putnam, J.

This was an action of ejectment, brought to recover land in Warren county, of which one Orin Lashua died seized.

On October 26, 1883, deceased executed a will which, after his decease, and on November 16, 1885, was admitted to probate by the surrogate of Warren county, and contained the following provisions :

“ Second. I give to my wife, Margaret Lashua, a home in my dwelling house during her natural life, and also to my daughter Gertie I give a home with her mother as long as she remains •single or unmarried; the above is subject to conditions hereinafter named.
Third. I give and bequeath to my son, Edward Lashua, my house and lot, on condition that, after he is liberated from prison, he shall live in the house with his mother and sister Gertie, and •shall furnish fire wood and comfortable board for them in the same manner as I have done, as long as his mother shall live, and the household goods that belong to me shall remain for their use in the house.
•“ Fourth. I further direct, in case my son Edward shall elect not to accept the provisions of the legacy to him, then my executors hereinafter named are authorized, if they shall think it advisable, to sell the premises and apply the interest from the proceeds to the support of my wife and daughter, as above provided.
Fifth. I also further direct, if my son declines to accept, that whatever is left at my wife’s death shall be equally divided between my children that survive her.”

At the time of the probate of said will Edward Lashua was in the state prison under sentence of felony, about six years of his sentence being unexpired. He was, however, pardoned on July 27, 1886, and the court below finds that he elected to “ and did accept the terms and conditions of said will, and entered into the possession of said property, on or about the 27th day of July, 1886, as devisee and owner thereof under the said will, and continued in the possession thereof, as such owner, until the 22d day of March, 1888, when he joined with his mother in a conveyance by deed to the plaintiff in this action, for a valuable consideration, whereby each of them assumed to and did convey to the plaintiff all the right, title and interest which either of them had in said property; * * * that the beneficiary, Gertie Lashua, named in said will, was married prior to the execution of said deed.

“That at.the time of the execution of said deed, Edward Lashua and Margaret Lashua were the only persons who had any interest in or title to said property.”

It will be seen by the above quoted provisions of the will that the widow of the testator was bequeathed a home in his dwelling during her natural life. She was to have this home from the date of his death, but was not entitled to firewood and board until the liberation of Edward from state prison. The latter, under the terms of the will, took the house and lot from the dale of the death of his father, but was not compelled to furnish board and firewood for his mother and sister until the expiration of his sen-, tence.

Counsel for defendant claims that at the time the will took' effect Edward Lashua, being in state prison under sentence for a felony, and all his civil rights being suspended, Penal Code, § 707, could not accept the provisions of the will of his father in his favor. Also that by the terms of the will Edward was not called upon or authorized to act or accept the bequest in his favor until his imprisonment ended. That hence, under provisions of the will, and also because of Edward’s imprisonment, the title to the property was in abeyance until his discharge from state prison. And, therefore, the bequest in favor of Ed,ward was void as illegally suspending the power of alienation. It is well settled that the power of alienation cannot be suspended for an absolute term, however short. Home's Ex'rs v. Van Schaick, 20 Wend., 566; Tucker v. Tucker, 5 N. Y., 408.

Therefore, if it is true that the fact of his being a convict, by the terms of the will, or from Edward was not called upon, or could not accept the bequest in his favor until the expiration of his sentence, if the title of the property was in abeyance until that period, the bequest was void.

The construction to be placed upon § 707, Penal Code, is not well settled. In Miller v. Finkle, 1 Park. Crim.; 374, under a similar provision of the Revised Statutes it was, /in effect, held that one sentenced for a felony to state prison c/ould not transfer personal property. It has been held that a< convict could be sued but could not maintain an action. Davis v. Duffie, 8 Bos., 617; 4 Abb. Pr., N. S., 478: Bowles v. Habermann, 95 N. Y, 249 But, in Avery v. Everett, 110 N. Y., 317; 18 St. Rep., 213, the effect of a life sentence, as to the próperty and civil rights of a convict, was considered at grqat length. Under the statute, one sentenced for life is thereafter to be deemed “ civilly dead." While, under § 707 of the Penal Code, the sentence for a less term suspends the “ civil rights ” of the person sentenced. Certainly a convict who, under the statute, is “ civilly dead," is to be deemed as much deprived of “ civil rights " as if those' rights were suspended.

In the authority last cited it was shown that, at common law, one attainted could be grantor and grantee after attainder, and the grant would be valid against any person except the king; he can take a grant or grant to others; while he cannot enter into executory contracts and enforce them, he may transfer his property by will or deed. The case also holds that the provisions of the Revised Statutes, which were similar to those of the Penal Code, supra, should be considered as merely declaratory of the common law.

The authority cited thus determines that one under sentence of imprisonment for life, though civilly dead, may take by grant or devise, or transfer his property by will or deed. It naturally follows that one imprisoned for a term of years may also take or convey by grant or devise.

Therefore Edward Lashua, on his father’s decease, could take the house and lot bequeathed to him. He could be the devisee; The power to take by grant or devise implies the power to apcigd and he could, therefore, accept the bequest so made in his--ia vujv I do not think the position of the appellant can be sustained, that by the terms of the will the acceptance could not be made until Edward was discharged from state prison, and until that time the title of the house and lot was in abeyance. Under the provisions of the will the title of the lot at once vested in Edward, subject to the condition or covenant compelling him to furnish board and fire-wood to his mother and sister. He could accept the bequest at once after his father’s decease, of course subject to the condition or covenant above mentioned.

I conclude, therefore, that the title vested in Edward Lashua on the death of his father, and hence that there was not an illegal suspension of the power of alienation. If the bequest in question created an estate upon condition, it was a condition subsequent. The title vested in Edward prior to his discharge from prison, and, therefore, prior tó his liability for board and fire-wood, and hence the condition was subsequent. This being so he could at any time convey his interest in the house and lot, subject to the condition. Mich. State Bank v. Hastings, 1 Doug. (Mich.), 225-52. See 3 Amer. & Eng. Encyl, of Law, 422-23. It follows that there was no suspension of the power of alienation.

In the opinion of the trial court it is suggested that the provisions of the will requiring Edward to furnish meals and wood to the widow of deceased was not a condition, but a covenant and personal charge upon the devisee. He cites the • case of Jackson v. Martin, 18 Johns., 31. The language of the will in that case, however, differs from that used in the bequest under consideration. In that case there was an unqualified devise to the son of the testator without condition, but with certain directionc for the devisee to obey. Here the house and lot is left to Edward “ on condition ” that he should furnish fire-wood and meals to his sister and mother.

The language of the devise in the case last cited is so differ"ent from that contained in the will of Lashua that it can hardly be deemed an authority. Although it is held that conditions subsequent are not favored, Ludlow v. The N. Y. & Harlem R. R. Co., 12 Barb., 440; Chapin and wife v. School District, 35 N. H., 450-51; 4 Kent’s Com., 132, yet the language of the bequest under consideration is such that it is not clear that its effect was not to create such a condition. But if the effect of the bequest was to create an estate with a condition subsequent, the estate was not thereby rendered inalienable. There were persons in being who could convey an absolute title, viz: Edward Lashua, the devisee, and the widow and daughter of testator, for whose benefit the condition was created. These parties united could convey an absolute title. See 23 Abb. N. C., 416, note entitled “Suspension of alienation by conditions.”

The daughter Gertie having married prior to the death of the testator, and the widow having joined in the deed to plaintiff and thus consented to the conveyance under which plaintiff claims, I think she established her title to the premises described in the complaint, and that the judgment should be affirmed, with costs.

Herrick, J., concurs.  