
    Rose J. Ranhofer and Others, Plaintiffs, v. The A. C. & H. M. Hall Realty Company, Defendant.
    First Department,
    March 10, 1911.
    Real property — vendor and purchaser — marketable title — will construed.
    Where a testator gave his widow a life estate and at her death or remarriage devised the property to his children “and to the descendants of any of them then deceased in the proportion of the share of each child to his or her descendants, share and share alike,” the widow and the children cannot convey a marketable title for they cannot cut off the contingent remainders devised to grandchildren.
    The widow takes no power of sale under a clause providing that after she has released her dower testator appoints her executrix and trustee “for the purposes of said trust, for her own sole use and benefit, during her natural life, * *' * and upon the date of her said decease * * * I do hereby further appoint my son * * * and my daughter * * s to be my executors and trustees * * * with full power to sell and dispose of the rest, residue and remainder of my said estate, * * i:" with full power to make good and sufficient deed, or deeds thereof.”
    The testator intended to have the property kept intact during the widow’s life, and then sold and divided.
    Submission of a controversy, upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Frederic R. Coudert, for the plaintiffs.
    
      Thomas G. Ennever, for the defendant.
   Scott, J.:

The plaintiffs, being the widow and all the surviving children of Charles Ranhofer, deceased, contracted to sell and convey to defendant certain real property in the city of New York. On the day agreed upon for the completion of the sale the plaintiffs tendered to defendant a deed of the premises duly executed by all of them, and Rose J. Ranhofer also tendered a deed of the same premises, duly executed by her as executrix of the last will and testament of said Charles Ranhofer, deceased. The defendant refused to accept the deed and complete the purchase because, as it alleged, the plaintiff could not convey said premises by a clear and marketable title. The grounds of the objection are found in the will of said Charles Ranhofer, deceased.

By the 1st clause the testator gives his widow what is in effect an estate for life or widowhood. The 2d clause contains the gift over, and reads as follows:

After the decease of my said beloved wife, or in the case of her remarriage, * * * I do from and upon the date of her said decease or remarriage give, devise, and bequeath all the rest, residue and remainder of my said estate, real and personal, then undisposed of, to my beloved children, and to the descendants of any of them then deceased in the proportion of the share of each child to his or her descendants, share and share alike, for the sole use and benefit of my said children, respectively, and their descendants; and to the survivors of my said children in the cases of the decease of either of them, without such descendants.”

Although less artificially expressed, this provision does not differ materially from that which was considered in Schwarts v. Rehfuss (129 App. Div. 630; affd., 198 N. Y. 585). In that case the will also gave a life estate to the widow, and “ at her death ” bequeathed all of the testator’s property to his four children, share and'sliare alike, and further provided, “ and in case any of my said children shall have died leaving issue, the share of the child so dying shall descend to and vest in his or her issue, and in case of the death of any child without leaving issue, his or her share shall descend to and vest in his or her surviving brothers and sisters.” It was held that upon the death of the testator his real estate vested in his children, subject to being divested by their not surviving the life tenant, and consequently that the widow and children could not convey a title which would cut off the possible claims of grandchildren. This view prevailed in the Court of Appeals, notwithstanding a strong dissent in the Appellate Division. To the same effect is Lyons v. Ostrander (167 N. Y. 135).

The plaintiff insists that the will shall be construed in accordance with the rule expressed in Hersee v. Simpson (154 N. Y. 496) as follows: “Words or phrases denoting time, such as when, then and 1 from and after ’ in a devise of a remainder, limited upon a particular estate determinable on an event which must necessarily happen, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of its vesting.” In that case after a devise to the wife for life, the will provided, “ 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 Hew York governing the descent of real property and the distribution of personal estates.” It was held that the heirs at law took upon the death of the testator a vested estate in remainder, the court observing: “ There is nothing upon the face of the will, aside from the words 1 from and after,’ which in any way tends to sustain or give color to the construction that the vesting of the remainder was postponed or intended to be postponed beyond the death of the testator.” The difficulty in the way of applying this case is that the present will very clearly indicates an intention on the part of the testator that the persons to take at the death or remarriage of the widow were to be determined as conditions are at that time. The devise of the remainder is expressly made to the then surviving children “ and to the descendants of any of them then deceased.” If there should be any such descendants surviving at the death of the widow, it is clear that they would take directly from the testator, and not by representation from the deceased parent.

It is further urged that under the 4th clause of the will the widow as executrix and trustee took a power of sale. To so hold would be to do violence to the plain import of the language, and would, as we think, be inconsistent with the general scheme of the will. The language relied upon is as follows: After providing for a renunciation by the wife of her dower interest, which it is provided must precede her appointment as executrix, the will proceeds:

Fourth. After my said beloved wife shall have so duly executed her said instrument for the release of her dower, and the same has been duly recorded, I do further make, constitute and appoint my said beloved wife, Rose Justine Rankofer, to be my executrix of this, my last will and testament, and trustee of my said estate, real and personal, for the purposes of said trust, for her own sole use and benefit, during her natural life, or until her remarriage, prior to her said decease; and upon the date of her said decease, or remarriage, I do hereby further appoint my son, Edouard Rankofer and my daughter, Blanche A. Duperret, to be my executors and trustees under my said last will and testament, as successor to my said beloved wife, with full power to sell and dispose of the rest, residue and remainder of my said estate, real and personal, at private or public sale, for the full and fair value thereof, with full power to make good and sufficient deed, or deeds thereof, to convey the same to the purchaser or purchasers thereof, with a good title thereto, as required by law.”

The predominant purpose which seems to pervade the will is that the property shall be kept intact for the benefit of the testator’s wife during her life or widowhood, and that upon her death or remarriage it shall be sold and divided. Thus in the 2d clause it is provided that the children and descendants to whom the estate is given shall have full power to sell and dispose of my said estate, real and personal,” a provision which is quite futile as conferring a power of sale upon those who have already an absolute title, but still indicative of the testator’s purpose that the property shall remain unsold during the life tenant’s life or widowhood. To carry out this purpose it was quite consistent to give a power of sale only to the executors and trustees to be substituted upon the widow’s death or remarriage. There is no reason, .tlierefdre, to give a forced construction to the 4th clause.

Our conclusion is that the children of Charles Rankofer each took a vested remainder in his real estate, subject to be divested by death before the decease or remarriage of his widow and life tenant, and, therefore, cannot convey said real estate by a good and marketable title, and further that the will did not confer upon Rose J. Rankofer, as his executrix, a power of sale.

It follows that there must be judgment for the defendant, as prayed for in the submission, with costs.

Clarke, McLaughlin, Miller and Dowling, JJ., concurred.

Judgment ordered for defendant, with costs.  