
    Joseph H. Bearns, Ex’r, Pl’ff, v. Ferdinand H. Mela, Def’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Vendor and purchaser — Defective title — Will—Suspension of power OF ALIENATION.
    Testator devised to his executor all his property in trust to receive the' rents and profits and pay the same to his mother during her natural life; and upon her death before his half-brother and sister became twenty-one to apply the same to their support and education until they, respectively., arrived at that age, and upon the death of his mother and upon the half-brother and sister arriving at the age of twenty-one, he gave and devised to them all his estate, to he equally divided between them. The will ais» provided that if either died leaving issue, such issue should take the share his or her parent would have taken if living, and gave a power of sale to the executor.' Held, that there being no devise of the remainder except upon the half-brother and sister arriving at the age of twenty-one years, the construction of the devise as to whether there was an undue suspension of the power of alienation was,so uncertain that a purchaser from, the executor would not.be compelled"to take title.
    
      {Mona/rque v. Moncwque, 80 N. Y., 320, distinguished.)
    Submission of controversy on agreed facts.
    
      Pabe & Keller, for pl’ff; Charles Putzel, for def’t.
   Van Brunt, P. J.

There being no evidence furnished to the court that the papers, as required-by the provisions of the Code, rave been filed with the clerk of the court, we might very well m that ground decline to entertain the submission. In order that the court may acquire jurisdiction, it is necessary that proof should be furnished of the jurisdictional facts, one of which is that papers should be filed in the office of the county clerk.

The plaintiff in this action entered into a contract whereby he agreed to sell to the defendant certain premises. At the time fixed for the delivery of the deed the defendant refused to take title, upon the ground that the trust attempted to be created by the will of one Fisher, of whom the plaintiff was acting as executor, was invalid in that it unlawfully suspended the power of alienation; and that the power of sale in the will is inseparably connected with the trust and falls with it; and also that if the' trust is adjudged to be valid the plaintiff has no power to sell until after the death of the life tenant

It is very clear that judgment in favor of the plaintiff compelling the defendant to take this title cannot be rendered if there is any reasonable doubt as to the character of the title which the defendant will acquire by the conveyance tendered to him by the plaintiff. The court is obliged to construe the provisions of the will without having the parties before it to make such construction conclusive. And therefore if there is any reasonable question as to the construction which is to be'placed upon the will, the defendant should not be compelled to take title to this property, because he does not get a marketable title, viz: one free from reasonable doubt.

We think upon an examination of the will in question there may be doubt in reference to the validity of the trust and the power of sale, and therefore the defendant should not be required to take the title. The said Fisher, of whom plaintiff is executor died seized of the premises in question leaving him surviving his mother and a brother and sister of the half blood, and also a last will and testament in which he devised to his executor the plaintiff all his property, in trust first to receive the rents, issues and profits thereof; second, to pay the same unto his mother during her natural lifeand third, upon the death of his mother before his-half brother and sister shall have arrived at the age of twenty-one years he directs his executor to apply the rent, income and profits of said real estate for the support, education and maintenance of said half brother and sister until they respectively arrive at the age of twenty one and then upon the death of testator’s mother and upon the said half brother and sister arriving at the age of twenty-one, he gave and devised unto his said half brother and sister all his estate of every kind to be equally dividedbetween them, and in case of the death of either leaving lawful issue, such issue was to take the share his, her or their parent would have taken if living, to be equally divided between them share and share alike, to them, their heirs and assigns forever.

It is claimed upon the part of the plaintiff that this devise is similar to that contained in the will which was considered in the •case of Monarque v. Monarque, 80 N. Y., 320. But upon an examination of that case it will be seen that there is a distinction which makes the cofistruction of the devise under consideration too uncertain to compel a purchaser to take title dependent upon the validity thereof.

In the case cited, by the first clause of his will, the testator gave to his widow the use of all his personal and real estate during her life; by the second, he gave all income arising from his estate to his four daughters, “ to be divided equally between them, share and share alike, during their and each" of their respective natural lives, remainder to their respective children, and to their respective heirs and assigns forever.” This latter clause in reference to the remainder is conspicuously absent •from the will now under consideration.

The presence of this clause showed that it was the intention of the testator that from the time of his death the children of his daughters should take a vested remainder in his estate, and that upon the death of a daughter leaving children, he intended that such children should be entitled to an estate in -possession. Under these circumstances, 'the court held that there was no suspension of the power of alienation beyond the period limited by the statute.

In the case at bar -there is no such provision in regard to the remainder; upon the contrary, there is no devise of such remainder except upon the half brother and sister arriving at the age of twenty-one years. The language of the testator is, that upon the death of his mother, and upon said half" brother and sister arriving at the age of twenty-one, he gave and bequeathed unto them all his estate, etc. There is nothing which devises the estate which has previously been given to his executor until those two children arrive at twenty-one years of age. If they were both living and one arrived at the age of twenty-one, no title would vest in the one so arriving until the other had attained that age, and if either died prior to arriving at twenty-one, there would be no devise until the other arrived at twenty-one; contravening the statute.

But it may be argued that the testator provided that in case of the death of either leaving lawful issue, such issue was to take the share his, her or their parent would have taken if living. But it is difficult to establish that such issue can take anything until the parent would have arrived at twenty-one years; because there appears to be no devise to such parent until he or she arrives at. twenty-one; and if the children are to take what the parent would have taken and the parent would have taken nothing until arriving at twenty-one, there is nothing for the children to take until that time elapses.

It is possible that a different construction may be placed upon this clause; but it is by no means certain that ■ it can be brought within the rule laid down in Monarque v. Monarque, supra.

It appears from a reading of the will that the power of sale is distinctly connected with the' trust, is part and parcel of it and was given to aid in the execution of the trust and for no other purpose whatsoever.

Under these circumstances we do not think that the defendant should be compelled to take the title which has been offered, and judgment is given for defendant accordingly, with costs.

Brady and Daniels, JJ., concur.  