
    Carrie C. Guernsey and Sadie F. Guernsey, Plaintiffs, v. Dennis C. Van Riper, Defendant.
    Second Department,
    May 12, 1908.
    Will—real property—life estate with contingent remainders — title from life tenant —judgment — unborn remainderman not bound.
    Where certain realty is devised to one grandchild for life, remainder to her issue, or, on her death without issue, a life estate to another grandchild, remainder to her "issue, and if both grandchildren died without issue then remainder to a third party, the two grandchildren united cannot give a marketable title even though the third party has died.
    That the grandchildren have been held to take as heirs at law in- an action to construe the will, the will not having been declared void, does not estop their unborn issue who were not parties to the action, from claiming title.
    Submission of a controversy upon 'an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Francis B. Sanford, for the plaintiffs.
    
      Brewster & Farries, for the defendant.
   Woodward, J.:

This action is to determine whether the plaintiffs are in a position to give a marketable title to certain real estate situated on Depew avenue at Nyack, hi. Y. Sarah Cokalete died in the month of September, 1896, leaving a last will and testament. By the terms of this will she gave to the plaintiff Carrie C. Guernsey the life use of the premises involved in this action, and provided that “ upon the death of my said grandchild, Came C. Guernsey, I give, devise and bequeath the said house and lot * * * to her issue, if any then surviving, and in defau t -of any such issue, then to her sister Sadie F. Guernsey, should she be living, for and. during the term of her natural life only. And upon the death of the said Sadie F. Guernsey, leaving issue, then I give and devise the same to such issue in fee. Should both of my said grandchildren die without issue surviving, then I give and devise the said houses and lots to Margaret Hoffman, of Yonkers, FT. Y., to have and to hold the same in fee simple absolute.” Margaret Hoffman died prior to the death of the testatrix, so that there is no question relating to her; and the plaintiffs, who are both unmarried and under twenty-five years of age, have attempted to sell the premises. The question presented is whether they can give good title, and it hardly seems open to- debate that this question must be answered in the negative. The plaintiffs in no event have any title under this will, except to life estates, and the question of who shall take the premises at the termination of the life estates depends upon the contingency of children being born to one or both of the plaintiffs. If no children are born to Carrie C. Guernsey, or if none survive her, the next life estate goes to her sister, and if the latter die without issue surviving, then there is no disposition of the fee, and it would go to the then heirs at law' of the testatrix. But in no event could the title vest in the plaintiffs under the will. While it is true that in an action brought for the purpose of securing a construction of this will it was held that the plaintiffs took as heirs at law and not under the will, there was no adjudication that the will was void; and the unborn issue of the plaintiffs not having been parties, no way suggests itself by which they could be estopped to assert title in themselves if the future should see them brought into'being, and they should survive the life estates in the manner pointed out in the will. The testatrix had a perfect right to give life estates in her property ; she had a perfect right to vest the fee in the surviving issue of her grandchildren, even though they were not then in being; and having done so there can be no justification in law, so far as we are able to discover, for holding that the plaintiffs, with life estate interests, can convey the fee in any manner whatever. They are strangers to the fee title, and in the nature of things must continue to be, for it can never be determined, until death intervenes, whether the fee passes under the will or by operation of law.

The defendant, under the stipulation, is entitled to judgment.

Jenks, Hooker, Gaynor and Bioh, JJ., concurred.

Judgment for defendant on submission of controversy, without costs.  