
    Helen J. Johnson and Bessie F. Johnson, Plaintiffs, v. Peter R. Ross and George M. Lewis, Defendants.
    Third Department,
    March 4, 1914.
    Will—provision creating trust for life of beneficiary, construed.
    A testatrix provided by will that her trustee should hold the residue of her estate and pay over the income therefrom to her son during his life. He was also authorized at any time he should see fit' to convey the principal to the son, with the latter’s consent. The son was also given authority to dispose of the property by will, whether it had been previously conveyed to him or not. The son died before the property had been turned over to him, and without making a will.* Held, that the residue of the property reverted to the estate of the testatrix upon the death of the son, and his children acquired no title therein.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Mangan & Mangan, for the plaintiffs.
    
      Deyo & Hitchcock [C. H. Hitchcock of counsel], for the defendants.
   Smith, P. J.:

The plaintiffs seek to compel the defendants to execute a contract and accept a deed of certain premises heretofore contracted to be sold by the plaintiffs to the defendants. The defense is that the plaintiffs have not good title to the property and cannot convey. The plaintiffs are the children and sole heirs at law and next of kin of Charles B. Johnson. They claim their title through the will of Primrose S. Johnson, the mother of Charles B. Johnson. . This will provides for the payment of debts and for certain legacies, and, in the 2d subdivision of the 2d paragraph, further provides: That the trustee shall “set aside or hold the balance of said rest, residue and remainder of my estate and pay over and apply the use, interest and income therefrom to my son Charles B. Johnson for his support and that of his family during his- lifetime. I hereby authorize and empower my said trustee at any time he shall see fit, my said son Charles B. concurring, to turn over to my said son Charles B. Johnson said principal, whereupon the same shall be his absolutely; and I hereby authorize and direct that the said Charles B. Johnson, whether the said principal shall be passed over to him by my said trustee or not, to dispose the same as he may please by any will or testament.”

The property in question is comprised within this residue. It was never turned over to Charles B. Johnson during his lifetime, and Charles B. Johnson died without a will.

I am unable to see how the plaintiffs have the full title to this property. If the property had passed to Charles B. Johnson in his lifetime they would of course inherit. If he had named them hy a will they would take. The provision is made for the rents and profits to he paid to the son, Charles B. Johnson, for his support and that of his family during his lifetime, with the right to will it at his death. There seems to he no provision that the property shall go to his family after his death in case he shall make no such provision by will. The property would seem to me to revert to the estate of Primrose S. Johnson upon the death of Charles B. Johnson without a will and to remain the property of that estate undisposed of. If this conclusion be right the plaintiffs have no title which they can give to this property to the defendants. The defendants are, therefore, entitled to a judgment against the plaintiffs dismissing the claim and for costs.

All concurred.

Judgment directed for the defendants, with costs.  