
    Anna T. Eyclesheimer, Plaintiff, v. Henry F. Hunter, Defendant.
    
      (Supreme Court, App. Div., Second Department,
    
    
      May 29, 1914.)
    Real Property—Will—Vested Remainder.
    Where a testator, without legal education or experience, draws a will, leaving his property to his wife for life, with a remainder to his two children “ or their heirs,” the words quoted are to be construed with reference to the death of the testator, and the remainders are vested.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1219 of the Code of Civil Procedure.
    
      Bayard L. Peck [John T. Hancock with him on the brief], for the plaintiff.
    D. A. Marsh [George D. Yeomans with him on the brief], for the defendant.
   Per Curiam.

This is a submitted controversy wherein plaintiff seeks specific performance of contract for the conveyance of realty. The sole question of law is whether the remainders constituted in the will of Peter D. Eyclesheimer are vested or contingent. The provision up for construction reads as follows: “ I, Peter D. Eyclesheimer of Winter Haven, Polk County and State of Florida, a farmer being of a sound mind, make this my last will. I give devise and bequeath my estate and property, real and personal that is or may be now or shall hereafter come to be mine before or after my death to my beloved wife Anna T. Eyclesheimer for her own use and benefit as- long as she shall live after which time it shall be equally divided, share and share alike between our two children Clarence M. Eyclesheimer and Mrs. C. F. Greenwood — nee — Hattie Eyclesheimer or their heirs.” The testator was and always had been a farmer, of no legal education or experience, and personally drew the will without legal advice.

We think that the remainders are vested. The expression “ or their heirs ” is to be construed with reference to the death of the testator. (Moore v. Lyons, 25 Wend. 119; Connelly v. O’Brien, 166 N. Y. 406; Hersee v. Simpson, 154 id. 496; Stokes v. Weston, 142 id. 433; Campbell v. Stokes, id. 23; Lewis v. Howe, 174 id. 340, 346 ; Riker v. Gwynne, 201 id. 150; Miller v. Gilbert, 144 id. 68.) The defendant should be required to perform. (Ebling v. Dreyer, 149 N. Y. 460.)

The judgment should be in favor of the plaintiff, without costs, in accord with the terms of the submission.

Jen ns, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

Judgment for plaintiff, without costs, in accord with the terms of the submission.  