
    Thomas Morgan and Others, Plaintiffs, v. Henry A. Collins, Jr., Defendant.
    First Department,
    July 11, 1912.
    Will construed — remainder, when vested and indefeasible — marketability of title.
    Under a will wherein the testator devised an undivided third of his lands to his wife for life, and thereafter to certain children named “ share and share alike, the issue of any deceased child to take the share the parent would have taken if living,” with a gift of the whole residuary estate to said children share,and share alike, “the issue of any deceased child to take the share the parent would have taken if living,” the children living at the death of the testator take an absolute vested remainder and not a title subject to be divested by death leaving issue surviving during the lifetime of the widow.
    Such will creates only a substitutionary gift in case of the' death of the first taker during the lifetime of the testator.
    Hence, the widow and the remaindermen by conveying their respective interests can give a marketable title.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Middleton S. Borland, for the plaintiffs.
    
      Frank P. Nolan, for the defendant.
   Dowling, J.:

This is a submission of a controversy upon an agreed statement of facts. Defendant contracted to purchase from plaintiffs certain real estate in the city of Hew York, a one-fourth interest in which was formerly owned by William Rogers Morgan, and the question here involved is whether, under the provisions of his will, the plaintiffs can convey and give a good and marketable title in fee simple in the premises in question. It is the contention of plaintiffs, that testator’s three children have a vested remainder absolute in the undivided one-third part of the testator’s real estate devised by. the 3d clause of his will, while defendant claims that the remainder so . devised to said children, although vested, is subject to he divested by the death of any one or more of said children during the lifetime of testator’s widow, leaving issue of such deceased child surviving.

William Rogers Morgan died July 25, 1911, leaving a last will and testament, v-hich was duly admitted to probate by the Probate Court of the city of Newport, State of Rhode Island (the place of his residence), on September 11, 1911, and which was duly exemplified and recorded as a will of real estate by the Surrogate’s Court of the county of New York, October 6, 1911. He left bim surviving his widow, Elizabeth W. Morgan, and three children, Joanna A. Morgan (now Goadby), Dudley Selden Morgan and Ethelinda A. W. Morgan, all of full age. They have all joined in the contract for the sale of these premises.

The clause of testator’s will directly involved in this controversy is the following:

“ Third. I give, devise and bequeath to my wife, Elizabeth Wetmore, one undivided third part of all my real property, not hereinbefore disposed of, To have and to hold the same for and during her natural life; and thereafter to my children, Joanna Adele Morgan, Dudley Selden Morgan and Ethelinda Augusta Williams Morgan, share and share alike, the issue of any deceased child to take the share the parent would have taken if living.”

The residuary clause is as follows:

“Fifth. All the rest, residue and remainder of my property, real, personal and mixed, I give, devise and bequeath unto my children Joanna Adele Morgan, Dudley Selden Morgan and Ethelinda Augusta Williams Morgan, share and share alike, the issue of any deceased child to take the share the parent would have taken if living.”

The scheme of the will, as becomes apparent upon a reading of the whole thereof, was to dispose of his estate practically as it would pass in case of intestacy. He left his widow a life estate in Tudor Lodge at Newport and a life -estate in his personal effects, together with a life estate in one-third of his realty, all these being in lieu of dower; the remainder, after the life estate, with the other two-thirds of the realty, going directly to his children in equal shares, but in case of then-death leaving issue the distribution to be per stirpes and not per capita. Consideration óf the entire will hut confirms the view that the use of the words “ the issue of any deceased child to take the share the parent would have taken if living,” in the 3d clause, should be construed to. refer, as does the similar provision in the 5th clause, to a possible death of one or more of the children during the lifetime of testator. They create only a substitutionary gift in the case of the death of the first taker during the life of testator. As was said in Matter of New York, L. & W. R. R. Co. (105 N. Y. 89): “It may be regarded as a settled rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator, and that if such devisee survives the testator, he takes an absolute fee; that the words of contingency do not create a remainder over to take effect upon the death, at any time, of the first taker, nor an executory devise, but are merely substitutionary and used for the purpose of preventing a lapse in case the devisee first named should hot be living at the timé of the death of the testator. This construction is uniformly adopted unless there is some. language in the will indicative of a different intention on the part of the testator.” This construction is applicable with equal force to both the 3d and 5th clauses, the words of substitution being the same. It is obvious that under the 5th clause they could have reference only to the time of the testator’s death, .and there is nothing to indicate an intention to assign a different time for their operation in the 3d clause.

In Nelson v. Russell (135 N. Y. 131), where the devise was to daughters for life, “ and from and after the decease of my said daughters Catharine Barry and Bridget Russell and each of them, I give and bequeath the said premises No. 356 Cherry street to James Russell the son of my said daughter, Bridget Russell, and upon the like events I give and bequeath the said premises No. 358 Cherry street to James Barry and Ellen Barry the children of my son Michael Barry now deceased, to be divided equally between them and their heirs, share and share •alike, the child or children of a deceased child taking the share which his, her or their parent would have taken if living,” it was held that by the settled rules óf construction the' grandchildren, James Barry and Ellen Barry, who survived testator, took upon his death a vested remainder in fee in the premises in question, and that the provision for their issue was by way of substitution in case of the death of the parent during the life of the testator; that the words “from and after the decease of my said daughters ” did not indicate an intention to postpone vesting; that the words “from and after” used in a gift of remainder following a life estate do not afford sufficient ground in themselves for adjudging that a remainder is contingent and not vested, and that the presumption is that a testator intends that his dispositions are to take- effect in enjoyment or interest at the date of his death, and unless the language of the will by fair construction makes his gifts contingent, they will be regarded as vested. For “words of survivorship and gifts over on the death of the primary beneficiary are construed, unless a contrary intention appears, as relating to the death of the testator.” Similar rules were applied in Livingston v. Greene (52 N. Y. 118); Embury v. Sheldon (68 id. 227); Stokes v. Weston (142 id. 433); Connelly v. O’Brien (166 id. 406); Trowbridge v. Coss (126 App. Div. 679; affd., 195 N. Y. 596).

We are of opinion that under the provisions of the will the children of testator-were given indefeasible vested remainders in his share of the premises in question, and that consequently the widow, who took the life estate, and the children, who took such remainder, are able to convey a marketable title to the undivided one-fourth of said premises of which the testator died seized.

Judgment is directed in favor of plaintffs, without costs.

Ingraham, P. J., McLaughlin, Scott and Miller, JJ., concurred.

Judgment directed for plaintiffs, without costs. Order to he settled on notice.  