
    Benjamin Webb, as Adm’r, etc., Pl’ff v. David B. Sandford, Def't.
    
      (New York Superior Court, General Term,
    
    
      Filed November 21, 1887.)
    
    Will—Construction of—Real estate—When freed from power.
    The will of one Webb provided: “It is my will that one-third of my real estate be at the disposal of my wife for distribution among her own relatives.” The widow of said testator died without making any disposition of the same. There being no other disposition of said realty under this will. Held, that the heirs of the testator took the fee freed from the limLed power of distribution by the widow.
    Question submitted to the court upon an agreed state of facts under section 1279 of the Code of Civil Procedure.
    One, Benjamin Webb, in his life-time made and published his last will and testament dated the 11th day of June, 1840, in due form of law to pass real estate by or under the Laws of the state of New York.
    By this will he gave his wife therein named all his household furniture and certain other property, and the use and improvement of all his real estate during her natural life for her support; if that should not be sufficient, she was to take so much of said real estate as necessary for her support.
    He then directed that one-third of his real estate be at the disposal of his wife for disptribution among her own relatives. The remaining two-thirds of his real estate he gave and bequeathed to certain of his relatives who were named in the will, and then directed that at the decease of his wife, his real estate he sold and divided and paid over as above-directed.
    Said Benjamin Webb in the month of August, 1840, died without issue and without in any manner having revoked or altered the devises contained in the said will.
    Said will was duly proved and admitted to probate according to law as the last will and testament of the real and personal estate of the said Benjamin Webb, deceased, before the surrogate of the county of New York, on or about the 22d day of September, 1840.
    The wife of the said Benjamin Webb survived him and did not die until 1870: she died intestate, without having made any disposition among her relatives of the one-third of the said testator’s real estate referred to in said will.
    The question which is submitted to the court is as follows: Did the one-third of the real estate of the said Benjamin Webb, as to which the said will provided as follows: “It is my will that one-third of my real estate beat the disposal of my wife for distribution among her own relatives—the widow of said testator having died without making any distribution of the same, descend to the heirs of the said Benjamin Webb, the testator above named?
    It was agreed, if this question was answered in the affirmative, judgment was to be rendered against the said defendant for a certain amount, and that if the question was answered in the negative, then judgment is to be rendered in favor of the defendant against the plaintiff.
    
      Henry B. B. Stapler, for pl’ff; Charles W. Dayton, for def’t.
   Truax, J.

—While it is well settled that a valid executory devise cannot at common law be limited after a fee, upon the contingency of the non-execution of an absolute power of disposition vested in the first taker, it is to be noticed that the first taker under the will of Mr. Webb did not have an absolute power of disposition. Her power of disposition was limited to the persons therein named, namely her relatives; and a disposition made otherwise than among her relatives would have been illegal and void. For this reason this will does not fall within the rule laid down bv the court of appeals in Van Horne v. Campbell (100 N. Y., 287).

We are of the opinion that this will gave to the wife a life estate in the property, with a limited power of disposition to be exercised by her in the method pointed out in the will, and that upon her death, before any exercise of the power of disposition, the heirs of the testator held the fee freed from the power.

Judgment is ordered for the plaintiff for the amount mentioned in the consent.

Sedgwick Ch. J., and Freedman, J., concur.  