
    Ella L. Hebberd, Plaintiff, v. Louis Lese, Defendant.
    
      Will—gift of a remainder subject to a life estate — when it vests absolutely only at the termination of the life estate — marketable title.
    
    A testatrix by her will gave certain real estate to her daughter “for her natural life and on her death, I devise the same to her children and issue should, she leave any, but should (she) not leave any her surviving, I devise the same to the Methodist Episcopal Church in 125th Street, Harlem, of which I am now a member, subject, however, to the power now hereby given to my executors to sell three lots thereof during the lifetime of my daughter should they deem it necessary for her support and the proceeds thereof shall be applied to the süpport and maintenance Of my said daughter and at her death, whatever may be left, if any, shall be given to and divided among her children share and share alike, the children of a deceased child to take the share of the parent.”
    In a case submitted to determine whether a marketable title could be given of the real estate passing under the will, it appeared that the daughter was over seventy-four years of age and had two children, both of whom were married but neither of whom had issue. By the death or removal of the executors the power of sale, given to them by the will, had been rendered ineffectual. Held, that the estate in remainder did not vest absolutely under the provisions of the will until the death of the life tenant, and that consequently her children, during her life, could not convey the remainder in fee.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      James A. Deering, for the plaintiff.
    
      John D. Connolly, for the defendant.
   Patterson, J,:

The defendant entered into a written contract for the purchase from the plaintiff of certain real estate situate on the southerly side of One Hundred and Twenty-seventh street in the city of Hew York. At the time appointed for the completion of the purchase the plaintiff tendered three deeds which she claimed were sufficient to convey- title to the premises, and she demanded that the defendant perform his contract in accordance with its terms. One of the instruments tendered was a quitclaim deed of a life tenant’s interest or estate. The defendant objected to the title upon certain specific grounds, which are, first, that as to the westerly part of the ;premises they are subject to a contingent interest and remainder in a religious corporation, which had not been cut off or extinguished, and that the title is subject to open and let in persons not in being; and, second, that as to the easterly portion of the premises, that portion is also subject to the interest of persons which interest cannot be con veyed by the plaintiff. The case is submitted to the court upon an agreed statement of facts, pursuant to the provisions of sections 1279, 1280 and 1281 of the Code of Civil Procedure. The single question presented is whether the plaintiff can give a marketable title to the land as specified in the contract of sale made between the parties..

The solution.of the question depends upon the construction to be given to the 6th clause of the will of Mary Ann Stead, who died in March, 1862, seized of the premises described in the contract. The testatrix left two children, Edward B. Stead and Sarah E. Barnes. Sarah E. Barnes was born on September 29, 1830, and is still living; she has two children, Ella L. Hebberd, born in February, 1853, married to Isaac FT. Hebberd in May, 1892. Mrs. Hebberd has no children. William E. Barnes, the son, was born in January, 1858, married in 1892; his wife died in 1897; there is no child of that marriage. In July, 1903, William E. Barnes married one Anna B. Hughes, who is still living, and there,.is no child of that marriage. The premises in question are apparently free from any claim of Edward B. Stead, and under the will of Mary Ann Stead passed to her daughter, Sarah E. Barnes, for life, with remainder over as stated in the 6th clause of the will, which reads as follows: I give, devise and bequeath to my said daughter the westerly portion of said property situate on 127th Street above mentioned, bounded easterly by the portion above devised to my said son, and northerly by 127th Street, for her natural life and on her death, I devise the same to her children and issue should she leave any, but should (she) not leave any her surviving, I devise the same to the Methodist Episcopal Cliurch in 125th Street, Harlem, of which I am now a member, subject, however, to the power now hereby given to my executors to sell three lots thereof during the lifetime of my daughter should they deem it necessary for her support and the proceeds thereof shall be applied to the support and maintenance of my said daughter and at her death, whatever may be left, if any, shall be given to and divided among her children share and share alike, the children of a deceased child to take the share of the parent, and 1 also direct my said executors to take from my estate and the proceeds thereof a sum which, with the above mentioned sum of one thousand dollars to be paid by my son, will be sufficient in their judgment for the erection of a neat and comfortable house on the said property above devised to my daughter, and erect therewith such house thereon for the use and benefit of my daughter.”

Sarah E. Barnes is over seventy-four years of age. By various conveyances, not now necessary to be specifically mentioned, title is claimed by Ella L. Hebberd tobe vested in her, and it is the same title which with the quitclaim deed was tendered to the defendant. •The Methodist Episcopal church corporation has conveyed any future contingent interest it may have to Sarah E. Barnes, and it is not essential to the decision of this case that more than a passing reference be made to the attitude in which the church corporation stands to the subject. Mor is it necessary to refer, except for the purposes of ascertaining the intention of the testatrix, to the provision of the will respecting the discretionary power vested in the executors to sell a portion of the property devised by the 6th clause for the support of the life tenant. The executors to whom that power was given are dead or have been removed, and there is no one who can exercise it.

The contention of the plaintiff is that the children of Mrs. Barnes, the life tenant, have a vested remainder, and that the deeds tendered to the defendant are sufficient to convey the whole estate, namely, that of the tenant for life and of the remaindermen. That contention is based upon the well-known rule that where a life estate is given with a remainder to take effect at, after, upon or from the death or marriage of the first taker, the remainder vests at the death of the testator (Livingston v. Greene, 52 N. Y. 118; Hersee v. Simpson, 154 id. 496; Ackerman v. Gorton, 67 id. 63 ; Monarque v. Monarque, 80 id. 320 ; Van Axte v. Fisher, 117 id. 401; Nelson v. Russell, 135 id, 140), and that the words “ from and after,” or “on the death of,” used in the testamentary.gift of a remainder, following a life estate, do not afford sufficient ground in themselves for adjudging that the remainder is contingent and not vested, and, unless their meaning is enlarged by the context, they are to be regarded as defining the time of enjoyment simply and not the vesting of title., But the rule invoked by the plaintiff must yield to the expression of a contrary intent of the testatrix manifested in the will. The presumption that a testator intends that his dispositions are to take effect either in enjoyment or interest at the time of his death is overcome by language in the will which, by fair construction, indicates a contrary intent. Gifts over bn the death of the primary beneficiary, unless a contrary intention appears, are construed as relating to the death of the testator. (Vanderzee v. Slingerland, 103 N. Y. 55 ; Matter of N. Y., L. & W. R. Co., 105 id. 92.)

The question then is whether the testatrix in the 6th clause of the will- intended that the period of vesting in interest and not in enjoyment or possession only should be postponed to the death of the life tenant. If such were her intention, then under the, terms of the will the persons entitled to the remainder cannot be ascertained at present. By the 6th clause it will be observed that the testatrix gives, devises and bequeaths the property therein mentioned to her daughter' for her natural life, and on the death of that daughter devises the same to her children and issue, should she leave any, but should she not leave any her surviving, the property is devised to the Methodist Episcopal Church in One Hundred and Twenty-fifth street, Harlem. Then follows the provision giving power of sale to the executors during the lifetime of the tenant for life to dispose of three lots, should they deem it necessary, for the support of the life tenant, and then at her death, whatever may be left, to be given and divided among her children share and share alike.

We are of the opinion that this pro vision'of the will points directly to the period of time at which the title to the remainder should vest, and our conclusion isx based altogether upon the language used in this 6th clause. It is simply a matter of interpretation, and we construe this provision as meaning that the remainder is given to the children and issue of the testatrix’s daughter, who survive that daughter. If that is the true construction, then the words “ on her death ” (of the life tenant) cannot relate to. such death during the life of the testatrix.

Such being the situation of this title, we are of the opinion that the defendant should not be compelled to perform his contract, and that judgment should be directed in his favor, as asked for in the agreed statement, with costs.

O’Brien, P. J., Hatch and Laughlin, JJ., concurred.

Hatch, J. (concurring):

I concur fully in the opinion of Mr. Justice Patterson ; and even if it could be held that the two children of Mrs. Barnes had a vested remainder, that remainder would be subject to be divested, should they or either of them have children and should die during the life of Mrs. Barnes; for by the terms of the will the grandchildren of Mrs. Barnes, as issue, would then take, and the rights of unborn persons cannot be cut off otherwise than by judicial proceedings. I, therefore, concur in the conclusion that this title is in suclr a condition that the defendant should not be required to take it.

O’Brien, P. J., Patterson and Laughlin, JJ., concurred.

Judgment ordered for defendant, with costs.  