
    Gladys G. Van Deusen, Respondent, v. Emma B. Van Deusen and Others, Respondents, Impleaded with Stephen R. Van Deusen, Appellant, and Cora Van Deusen and Frank Williams.
    Fourth Department,
    May 4, 1910.
    Will—construction — partition—right of owner of vested remainder.
    That construction of a will which vests the title to the property devised immediately upon the death of the testator will be preferred.
    Where a will provided that at the death of oneE., or in case she should die before testator's wife, then at the death of the wife, or in case testator should survive both, then at his death, testator gave certain property to the three youngest children then living ” of E., the phrase “ then living ” refers to the death of the testator.
    The three children of E. living at testator’s death, having a vested remainder, any one of them may maintain partition and, if the life tenant consent, a sale may he had.
    Appeal by the defendant, Stephen R. Van Deusen, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Onondaga on the 9th day of October, 1909, upon the report of. & referee, directing the sale of the premises described in the complaint in an action of partition.
    
      Arthur W. Mawson, for the appellant.
    
      Charles P. Wortmcm, for the plaintiff, respondent.
   Spring, J.:

The action is in partition, and the plaintiff’s right to maintain it at all depends upon the construction of the will of Stephen Dady, deceased. By that instrument he gave to his wife Lucy during life the use of all of his property. Upon the death of his wife he devised “ the use and benefit ” of his residence to Mrs. Emma Belle Van Deusen “ for and during her natural life.” The 3d clause of his will is as follows: “At the death of the said Emma Belle Van Deusen, or in case she should die before the death of my said wife Lucy E.-, then at the death of my said wife, or in case I should survive both my said wife and the said Emma Belle-, then at my death I give, devise and bequeath the said house and lot and land to the three youngest children then living of the said. Emma Belle Van Deusen in fee share and share alike.” He made a few specific bequests, a general one of fifty dollars, and the will contained also a residuary clause.

The testator died in September, 1904, and his widow two months later. At the time of the death of the testator, Mrs. Van Deusen, the second life tenant, had six children. The three youngest were girls, all minors when he died, the youngest being about eleven years.

Did the devise Vest in the three youngest children of Mrs. Van Deusen upon the death of the testator, subject to the life estates, so that only the enjoyment of the property by these children was deferred until the termination of the life tenancies? If so, the plaintiff, holding as tenant' in common a vested remainder, may maintain the action; and, as Mrs. Van Deusen has duly consented, a sale may be had. (Code Civ. Proc. § 1533.)

On the other hand, if, as appellant claims,, the estate is contingent, not vesting at all until the death of Mrs. Van Deusen, the action cannot be maintained by the plaintiff for she is not now the owner in fee and may never have any title.

The construction will be preferred which vests the title, immediately upon the death of the testator. (Connelly v. O'Brien, 166 N. Y. 406; Matter of Russell, 168 id. 169, 175; Moore v. Lyons, 25 Wend. 119.)

This construction, prevents disinheritance in case of the death of a remainderman prior to the termination of the life tenancy, and fixes unalterably the identity of those entitled to the fee, instead of léaving the passing of the estate uncertain and in the air until the intervening estates are determined.

-The 3d provision of the will provides that at the death of Mrs. Van Deusen, or in case “I should survive * * * said Emma Belle :-, then at my death I give * * * said house and lot and land to the three youngest children then living of the said Emma Belle Van Deusen.” The phrase “then living” refers to the death of the testator, which he has already mentioned. • Ho matter if the- words “at my death” are parenthetically inserted, although not so in the punctuating. They are in the will and the words “ then living ” naturally by their collocation refer to the words “ at my death,” rather than at the death of the life tenant. The whole provision by this interpretation is made plain in that the enjoyment of the fee by the remaindermen is deferred until the two life tenancies, have expired, and yet the vesting of the estate at his death is definitely fixed. I see nothing unreasonable in this construction.

In my judgment this construction coincides with the intention of the testator. The three youngest children were daughters, under age and unmarried. The two eldest were of age and married at the time of the death of the testator. While the son Rex was also under age, the testator had bequeathed to him his watch and chain, and the 7th provision of the will denotes that he was the recipient of the bounty of the testator.

The interlocutory judgment should be affirmed, with costs. .

All concurred.

Interlocutory judgment affirmed, with costs.  