
    Mary Elizabeth Ray, Appellant, v. Mathilde Jaeger (Formerly Mathilde Grube) and Others, Defendants, Impleaded with Helena E. Grube, Respondent.
    Second Department,
    March 19, 1909.
    Real property — conveyance oí life estate with remainder to same person — title of grantee alienable by will or deed.
    A conveyance of lands to E. for life, with a proviso that, should the estate terminate during the lifetime.of E., remainder to go to N. for the residue of E.’s life, and further providing that on the death of E. the remainder shall go ■ to him and his heirs, vests E. with both the life estate and the remainder. - The grantee became seized of the remainder upon the delivery of the deed, his estate commencing in preesenti, though to come into possession in futuro, and such remainder, by virtue of the statute being descendible, devisable and alienable the same as an estate in possession, passes by the will or deed of the grantee. . ■
    Appeal by the plaintiff, Mary Elizabeth Bay, from an interlocutory judgment of the Supreme Court in favor of the defendant Helena E. Grube, entered in the office of the clerk of the county of Kings on the 29th day of October, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the said defendant’s demurrer to the amended complaint.
    
      Theodore L. Frothingham, for the appellant.
    
      John E. Bullwinkel, for the respondent.
   Jenks, J.:

This appeal arises upon the successful demurrer of the infant defendant, H. Grube, that the complaint does not state facts sufficient to constitute á cause of action. The plaintiff sues to have herself and certain defendants adjudged heirs at law of Emery, deceased, and, therefore, to have partition of certain realty. The sole question is as to the estate of the said Emery perforce of a conveyance. The complaint shows that on July 28, 1897, an indenture was made between Herman Price ■ and his wife, seized in fee simple of the premises, as parties of the first part, and said Emery as party of the second part, and Naylor, party of the third part, that witnessed that the parties of the first part, in consideration of the sum of two dollars, lawful money of the United States, paid by the party of the second part, did grant and release unto the said party of the second part certain realty including the premises in question, “ together with the appurtenances and all the estate and rights of the parties of the first part, in and to said premises. To have and to hold the above granted premises unto the said party of the second part, for his life, and if by any means the estate should come to an end in the lifetime of the said party of the second part, remainder to the said party of the third part for the residue of the life of the said party of the second part, remainder after the death of the said party of the second part to the said party of the second part and his heirs subject however to all mortgages which are now liens upon said premises, which mortgages with the interest due and to grow due thereon the said party of the second part hereby assumes and agrees to pay.” The said Price, a party of the first part, covenanted with the party of the second part that he was seized of the premises in fee simple, with good right to convey ; that the party of the second part should quietly enjoy the premises; that they were free from incumbrance; that the parties of the first part would execute and procure any further assurance of the title to said premises, and that Price would forever warrant the title of said premises. The indenture was duly recorded, and the said party of the second party, Emery, entered into possession of the premises thereunder. On or about August 24,1900, the said Emery as party of the first part executed and delivered to M. Grube and H. Grube, her daughter, a deed which purported to convey to said M. Grube as party of the second part, and said H. Grube as party of the third part, the whole of the premises. On July 22, 1901, said Emery died leaving a will, which was admitted to probate, whereby he gave, devised and bequeathed to said M. Grube the said premises.

The contention of the plaintiff necessarily is that the said Emery took but a life estate. The substitution of names for description makes the peculiarity of the habendum more distinct. To have and to hold the above-granted premises to Emery for his life, and if by any means the estate should come to an end in the lifetime of Emery, remainder to Eaylor for the residue of the life' of Emery, remainder after the death of Emery to Emery and his heirs. In the construction of the conveyance we are confined to the language thereof, but we can consider the surrounding circumstances that we may “ stand in the very light, as near as possible, which the parties stood in.” (Mott v. Richtmyer, 57 N. Y. 49.) It appears in this conveyance that Emery conveyed these premises to Price on July 28, 1897, the very day that Price made this ■ indenture with Emery and Eaylor, which ivas in consideration of $2 paid by Emery. We have, then, the situation of one who owns premises ■in fee conveying them to a grantee who instantly reconveys them. Presumably the scheme of reconveyance did not contemplate that it but undo what was done. But we have no other light, so the reasons for the terms of conveyance are in the domain of speculation. If the conveyance had been to Emery and his heirs, Emery would have had a fee simple; if to Emery for life and remainder to his heirs, Emery would have had a life estate only, and his heirs have taken as purchasers. (Reeves Real Prop. Spec. Subj. 759.) But the peculiarity of the terms of conveyance is that the grant is to Emery for life and (omitting the provision for Naylor, which is not up in this case) at the termination of that estate remainder to Emery and his heirs, that is, at the termination of a life estate measured by Emery’s life, the remainder is to Emery and his heirs. Washburn on Real Property (Vol. 2 [5th ed.], p. 633) writes: “A'remainder may nevertheless be good, though limited upon an event that destroys the particular estate which supports it, provided it takes place by a union of the particular estate with the remainder, so as to merge the one in the other; though this cannot occur where the remainder is limited to á stranger-^-a person other than the tenant of the particular estate.” The grantors conveyed a life estate and a remainder. The interest, other than the life estate, was an estate in expectancy, for it was a future estate, termed a remainder, which could be created and transferred by that name, and as an expectant estate it was descendible, devisable and alienable in the same manner as • an estate in possession. (Real Prop. Law [Laws of 1896, chap. 547], §§ 26, 27, 28, 49. See, too, Moore v. Littel, 41 N. Y. 66; Hume v. Fleet, 23 App. Div. 185; Matter of Pell, 171 N. Y. 54; Baltes v. Union Trust Co., 180 id. 187.) The rule is stated by Professor Beeves in his work (supra), at section 581 “ Bemaindérs indefensibly vested.— An illustration of this class or form is. an estate to A for life, remainder to B, a living, known person, and his heirs forever. Bothing in its nature or limitation is to divest it. B may grant it away before A’s death-'; and if, while A is still living, B die, he may will it away or let it descend to his heirs. At A’s death, it is certain to become an estate vested in possession for B, or his heirs, devisees or assignees.” The only variation of this rule in this case is that the estate for life is in A, remainder to A and his heirs. But the remainder is none the less vested in A as a living person, and it is but accident in this case that the same person is made (primarily at least) life tenant for his life and remainderman, as in the Baltes Case (supra) it was an accident that the same person was the beneficiary of the trust' and remainderman. This grant took effect so as to vest the estate or interest intended to be conveyed at the delivery thereof. (Real Prop. Law, § 209.) Emery was seized of the remainder upon the delivery of the grant, his estate commencing in presentí, though to be occupied and enjoyed in futuro. The particular estate during life, and the remainder, are but one and the same estate in the law; the whole of which passed at once on the death of the testator, and the remainderman was seized of his remainder at the same time the particular tenant was possessed of her estate. The possession of the particular tenant is the possession of the remainderman, so. as to enable him to dispose of his estate by deed or will.” ( Wimple v. Fonda, 2 Johns. 288 ; Lawrence v. Bayard, 7 Paige, 70. See, too, Vanderheyden v. Crandall, 2 Den. 23.) Theobald on Wills (7th ed. p. 85) says: “ A contingent interest in real or personal estate vesting in a person after his death is transmissible and devisable,” citing authorities, In one of the cases, cited to sustain this rule (Ingilby v. Amcotts, 21 Beav. 585.), Sir John Romilly, M. R., said: “This ■rule, of descent is not con lined to contingent interests, for vested interests in remainder and reversion áre exactly in the same situation, and yet no one ever, supposed that a person who became entitled, by descent, to a vested interest in remainder, or to a reversion expectant upon the decease of á tenant for-life, was totally unable to dispose of such interest either by deed or by will, or,, in other words, was unable to grant or devise it.” (See, too, Parkin v. Gresswell, L. R. 24 Ch. Div. 102.)

I think that the.interlocutory judgment should be affirmed,, with ¡costs.

Woodward, Gaynor, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.  