
    Joseph Weinstein, Plaintiff, v. Lena Kratenstein, Defendant.
    Second Department,
    May 1, 1912.
    Will — vested remainders — power of widow and children to convey marketable title.
    Where a testator devised all his property to his wife for life with remainder to his children then living, provided, however, if his widow should, marry again she should have only the right to dower, upon the death of the testator remainders vested in his children, subject to be divested as to any child that died before the mother.
    Hence, the widow and children cannot convey a marketable title in fee.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.'
    
      Max Herzfeld, for the plaintiff.
    
      Abraham H. Spigelgass, for the defendant.
   Jenks, P. J.:

This is a submission of controversy pursuant to section 1279 of the Code of Civil Procedure. In 1898 Metzendorf died testate, seized in fee of a certain parcel of realty. The will reads as follows: “First. That after my lawful debts are paid, I give and bequeath unto my beloved wife, Catherina Metzendorf, all my property, real and personal, of what kind and • nature soever, and wheresover, of which I shall die seized and possessed, and to which I shall be entitled at- the time of my decease, to hold and to enjoy the same during the term of her natural life, provided she remains my widow. And after the decease of my said wife Catherina I give and bequeath Second. My said property, unto my children, then living, or to their heirs in equal parts, share and share alike. But in the case my wife Catherina Metzendorf should contract marriage again, then and in such case, she shall have only the right to dower and no more. I hereby appoint my said wife, Catherina Metzendorf, to be Executrix of this my last will and testament, hereby revoking all former wills by me made.” The testator was survived by his said wife and five children, and they all are now alive. In 1904 the Widow and children conveyed the said parcel of realty to Sweedler and Berman, and by mesne conveyances the defendant became seized of whatever title was conveyed to Sweedler and Berman as aforesaid. On January 9, 1911, the defendant and plaintiff executed a contract for conveyance of an absolute fee in the premises. On the law day the plaintiff refused to accept a deed on the ground that the defendant did not have an absolute fee simple, in that the said widow and children could hot have conveyed the said parcel in fee. The plaintiff demands judgment for $300 liquidated damages; the defendant demands that the complaint be dismissed.

We are of opinion that" upon the death of the testator remainders were vested in his children respectively, subject, however, to divestiture as to any child that predeceases the life tenant. (Lyons v. Ostrander, 167 N. Y. 135.) We think that the widow and children could not convey a marketable title in fee, and for that reason there should be judgment for the plaintiff for $300, with costs, in accordance with the terms of the submission. (See Harris v. Strodl, 132 N. Y. 392-397; Kilpatrick v. Barron, 125 id. 751.)

Hirschberg, Thomas, Carr and Rich, JJ., concurred.

Judgment for plaintiff for $300, with costs, in accordance with the terms of the submission.  