
    Henry Duchardt, Individually and as Executor, etc., of Henry Duchardt, Deceased, and Others, Plaintiffs, v. Patrick M. Cassidy, Defendant.
    
      Will — when am estate in fee simple absolute is conveyed thereby.
    
    A testator by his will; after devising certain specified real property in fee to each of his children with the exception of his daughter Charlotte, devised certain specified real property to Charlotte “ to have the income and rents thereof ‘ during her natural life, at her death to be divided amongst all my remaining ■children, share and share alike.” The residuary clause provided as follows: “ All my other real estate and personal property to be divided share and share alike between all my children.” After the residuary clause was- the following: “I hereby appoint my son Henry Duchardt to act as trustee for my daughter 'Charlotte D; Duchardt, her houses to be rented and kept in repair, the money her share to be put in bank or bond and mortgage for her benefit while living.” - .“The real and personal estate of which my daughter Charlotte D. Duchardt is possessed during her lifetime, at her death is to be divided equally between my heirs.”
    
      Held, that the testator’s children acquired an estate in fee simple absolute in all the property which passed under the residuary clause, and that the clauses following the residuary clause related solely to the property in which Charlotte had a life estate.
    Van Brunt, P. J., dissented on the- ground that the submission upon which the question was presented was irregular in form.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Herbert M. Johnston, for the plaintiffs.
    
      George W. McAdam, for the defendant
   Hatch, J.:

The plaintiffs, in June, 1901, made and entered into a contract with the defendant for the sale of certain real estate, situate on the southerly side of One Hundred and Twenty-second street, between Lexington and Third avenues, in the borough of Manhattan, at the agreed price of $5,850. The plaintiffs trace title to the premises through Henry Duchardt, who died May 14,1900, leaving a last will and testament, dated December 30, 1897, which was duly admitted to probate. Henry Duchardt, by the terms of the will, was made executor of the same and duly qualified as such. Whether the plaintiffs have good title to said premises is dependent upon the construction of this will, and the point in question is whether that portion of the estate of the deceased, which is the subject of the contract of sale, was vested in the plaintiffs at the time of its execution. The will is short and its scheme seems to be plain. The testator was survived by four children, the plaintiffs in the action. To each one of the children, except Charlotte D. Duchardt, was devised certain specified real property in fee. The clause of the will containing the devise to Charlotte D. is in the following language : “ To my daughter Charlotte D. Duchardt, the houses and lots Ho. 162 East 122d street, also 326 and 328 East 121st street, to have the income and rents thereof during her natural life, at her death to be divided amongst all my remaining children, share and share alike.” The residuary clause reads as follows: “ All my other real estate and personal property to be divided share and share alike between all my children.” It is evident that an estate in fee was devised of all of the real property which passed by the residuary clause. There is no limitation contained in that clause upon the title to the property devised. Thereby all of tlie children took an immediate vested estate in severalty, in nowise cut down or qualified by any other provision of the will. It consequently follows that there was vested in these plaintiffs, immediately upon the death of the testator, an estate in fee of the property devised in the residuary clause, and they could convey good title thereto! All of the parties in interest have joined in the contract, and when this is followed by the delivery of a deed, properly executed, by the parties thereto, the defendant will have acquired an absolute estate in fee of the premises so conveyed.

It is claimed, however, that two clauses of the will subsequent to the residuary clause' cut down and qualify the estate vested thereby in the plaintiffs. These clauses of the will read as follows: “ I hereby appoint my son Henry Duchardt to act as trustee for my daughter Charlotte D. Duchardt, her houses to be rented and kept in repair, the money her share to be put in bank or bond and mortgage for her benefit while living.” “ The real and personal estate of which my daughter Charlotte D. Duchardt is possessed during her lifetime, at her death is to be divided equally between my heirs.”

It is clearly evident that there is nothing contained in these clauses of the will which at all interferes with the vesting of an estate in fee of the real property under the residuary clause. A life-estate had been given to Charlotte D. in three houses and lots, with devise over to the testator’s other children, and it is evident- that this is the real property to which reference is made in the last clause of the will, which we have quoted, as it was this property of which Charlotte had possession during her life. By the last quoted clause, the real property in which she was given a. life estate, is at her death to be divided equally between the heirs of the testator; It is undoubtedly true that this devise vests an- estate in the children living at the death of the testator, subject, however, to open and let in heirs coming into existence after- the death of the testator and living at the death of Charlotte. Such construction, however, can have no effect either to qualify, cut down or limit the estate vested in these heirs by the residuary clause of the will, and as the real property therein devised is alone the subject of this controversy, as to it the plaintiffs have title in fee simple absolute, and are authorized to convey, the same.

It follows, that judgment should be awarded in favor of plaintiff for the specific performance of the contract, with costs.

O’Brien, Ingraham and Laughlin, JJ., concurred; Van Brunt, P; J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. I think that the submission is entirely irregular. The parties have attempted to limit the effect of the decision, for which there is not the slightest authority.- The judgment to be entered is precisely the same' as the judgment in an action and has the same effect, controlling' the same parties.

Judgment ordered for plaintiff, with costs.  