
    Annette C. Hersee and Carrie H. Coit, Plaintiffs, v. Louis W. Simpson, Defendant.
    
      Vested remainders — construction of a clause of a will “ from and after her decease my will is that all of my said property, he disposed of according to the statutes.”
    
    A testator, after bequeathing and devising all his residuary estate to his wife for life, provided “ from and after her decease, my will is that all of my said prop■erty be disposed of according to the statutes of the State of New York governing the descent of real property and the distribution of personal estates.”
    
      Held, that all persons who were his heirs at law at the time of the testator’s death, took vested remainders in his real estate, the enjoyment of which, only, was postponed until the termination of the life estate of the widow.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    The question related to the title and ownership of certain lands situated in the city of Buffalo and particularly described in the submission papers.
    
      William G. Newbrook, for the plaintiffs.
    
      Fred W. Ely, for the defendant.
   Hardin, P. J.:

Thompson Hersee, on the 8th day of March, 1879, made and executed his last will and testament, and in. December, 1884, he died at the age of seventy-one years, seized in fee simple of the real property described in the submission. He left him surviving a widow, the plaintiff, Annette 0; Hersee, and a son, William M. Hersee, and a daughter, Carrie H. Coit, one of the plaintiffs, and no other children or issue of deceased children. William M. Her-see died unmarried, intestate, without issue in September, Í891. Annette L. Hersee, a granddaughter of the testator, died in infancy in 1882, unmarried and without issue, some two years before the death of the testator.

In the 1st clause of the testator’s will he bequeathed $10,000 to Annette L. Hersee, who was the daughter of his deceased son, Thompson Hersee, Jr., “ on the condition that she live to be the age of twenty-one years, said conditional legacy to be paid to her on her arriving at the age of twenty-one years. But, if the said Annette should not live to be of the age of twenty-one years, then said bequest to be inoperative and of no effect.” ■

Inasmuch as Annette L. Hersee died in 1882, the legacy to her became wholly inoperative.

In the 2d clause of the will the testator used language which gives rise to the question presented in this case. The language is as follows: “All the rest, residue and remainder of my estate, real' and personal, of every name and nature (subject to the contingent payment of the above legacy), I bequeath and devise to my wife, Annette 0. Hersee, to have, hold and enjoy the same, with the rents, issues and profits thereof, during the term of her natural life, and from and after her decease, my Will is that all of my said property be disposed of according to the statutes of the State of New York governing the descent of real property and the distribution of personal estates.”

In the Sd clause of the will he nominated and appointed his wife, Annette 0. .Hersee, sole executrix

Ho trust was created by the terms of the will.

The language of the will seems very clearly to indicate the intention of the testator that his property should pass to his heirs at law and next of kin in accordance with the laws of the State of New York, except that the wife should have a life estate and enjoy the use of all his property (except such as might be required to pay the legacy) during her natural life.

The language used by the testator to carry out such intention seems to be somewhat inartistic, as it provides that, from and after the death of his wife, the testator’s property should be enjoyed by those entitled to it under the laws of the State, of New York governing the descent of real property and the distribution of personal estates. '

By the rise of the words “ my will is that all of my said property be disposed of according to the statutes of the State of New York,” the testator intended that the real property should be enjoyed by. his. heirs at law and that they should be let into the .possession of the same immediately upon the termination of the life estate given . to the wife.

The question to be determined is whether the real estate vested at the death of the testator,, or whether it should vest at the time of’ the death of the-widow. In other words, whether his heirs at law, at the time of his death, took a vested remainder or a contingent remainder. We think they took a vested remainder.-

By section 13 of the Revised Statutes (9th ed. vol. 2, p. llDO) it is provided as follows: “ Future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession, of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are . limited to take effect, remains uncertain.”

' That section was construed and applied in Sage v. Wheeler (3 App. Div. 40) by this court, and, in the course of the opinion delivered in that case, it was said : “ A construction is to be preferred which will give meaning to all the language used by the testator, and also that shall avoid the disinheritance of remaindermen who may happen to die before the termination of the precedent estate.”

In the language of the will under consideration there is a clear devise to the wife for life of the lands.. The words subsequently, used are not the words of devise of the remainder of 'the land . in express language, but they indicate that the land was to bedisposed of according to the statutes of the State.” In other words, the heirs of the testator were by Min assumed to be entitled to' his property under the laws of the State at the close of the life estate given to his wife. This construction leaves' the fee as a vested remainder in his heirs at law at the time of his death,,subject to the life estate in the wife, and enables us to give effect to. the words " from and after her decease ” as being intended to apply to the possession, or right of possession, of those who were embraced in the provisions of the statute as his heirs at law, and the words “ be disposed of according to the statutes ” are satisfied by assuming that ■they were intended to be used to relate to the property in the heirs after the close of the life of the wife, to whom was given a life estate.

If it be assumed that the testator intended that his children should take,. under the laws of the State, his real estate, subject .however, to the devise of the life use thereof to his wife, the language used seems to warrant the court in so construing the will as to carry Out that intention. We see nothing in the language indieating that “.futurity is annexed to the substance of the gift.” On the contrary, we are of the opinion that the devise to his heirs at law, in virtue of the statutes of the State, is absolute, and the time of enjoyment only is postponed to the termination of the life estate. And we think we may appropriately apply the language of Bartlett, J., in Miller v. Gilbert (144 N. Y. 73) where he says in respect to a testator’s will: “ Dealing with his real estate, the testator evidently intended the widow was to have a life estate and the sons the fee * * *.” ■

The construction which we have indicated is supported to a considerable extent by the following authorities: Matter of Embree (9 App. Div. 602); Bowditch v. Ayrault (138 N. Y. 222); Goebel v. Wolf (113 id. 405); Van Nostrand v. Marvin (16 App. Div. 28).

Our attention has been invited to Matter of Allen (151 N". Y. 243). The language found in the will there under ponsideration differs very essentially from the language of the will now before us. The language used there was- of a contingent devise and the postponement was clearly evidenced by the language of the will, and the devise “ was contingent upon the death of the father and mother of the testator before the death of his widow. It was only upion the happening of both of these events before her death that the devise to them was to take effect.”

Bisson v. West Shore R. R. Co. (143 N. Y. 130, affg. 66 Him, 604) differs from the case in hand, as there by the terms of a will the devise to the heirs was not, “by the terms of the -will, to vest in possession until after the termination of the life estate given to the widow. That was the time fixed for the gift to take effect and then was the time when the persons would b.e ascertained, who, coming under the description of heirs of the testator, would be entitled to share with the heirs of his widow in the distribution of the estate.” The language is unlike the language in the will before us.

• In Matter of Baer (87 Hun, 483 ; affd., 147 N. Y. 353) the will under construction was held to indicate quite clearly that the testatrix “ did not intend that the remainder should vest upon her death in the then living children and heirs of her brother, but should be postponed until the time for division and distribution arrived, and then to vest in such persons as answered to the description who survived.” That was a case where “ futurity is annexed to the substance of the gift,” and it was hel’d that it was the intention of the testatrix that upon the death of the daughter, for whose benefit the trust was created, without issue, “ the remainder should be distributed among such of the children of her brother as might then he living, and the lawful heirs of such as might he dead.” The case, we think, does not aid the contention of the defendant.

We are, therefore, of the opinion that the. whole title'to the real estate mentioned in the submission resided in the plaintiffs at the time of the execution of the contract mentioned in the submission. We are also of the opinion that the title was not “ involved in .so much doubt within the meaning of the rule ” as to justify the purchaser in refusing to perform the contract which he had entered into with the plaintiffs, and upon his receiving the warranty deed executed by the plaintiffs, he would acquire title to the property mentioned in the submission and described in the contract executed by the parties to this action. (See- Matter of Baer, 147 N. Y. 355).

We think judgment should be rendered in favor of the plaintiffs in accordance with the views already expressed.

All concurred, except Follett, J., not sitting.

Judgment ordered for -the plaintiffs, with costs.  