
    HENRY MILLER and JOHANNA MARIA DOROTHEA ELIZABETH MILLER, Plaintiffs, v. FRANCIS CARAGHER, Defendant.
    
      Will — devise of a remainder' to a son “ or Ms hews” — when it rests in the son.
    
    A testator by his will provided as follows: “I give and devise to my beloved wife Johanna M. D. B. all the rest and residue of my real estate as long as she shall remain unmarried and my widow, but on her decease or remarriage the remainder I give and bequeath to my son Henry or his hews."
    
    
      Held, that upon the death of the testator the son Henry took a vested estate in remainder, and that he and his mother could give a good title to the real estate.
    OontROTeRst submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.
    
      More, Arlington <& More, for the plaintiffs.
   Beady, J.:

On tbe'2d of February, 1885, the plaintiffs, one being the son and the other the widow of Franz Henry Miller, deceased, by an instrument in writing agreed to sell the premises described therein to the defendant. The plaintiffs, in pursuance of the'agreement, tendered a warranty deed with full covenants executed in due form, and also a bond and mortgage to be executed by the defendant in accordance with the agreement. He refused to comply with the contract upon the ground that the plaintiffs did not acquire by the will of Franz Henry Miller, deceased, an estate in fee simple in the premises proposed to be sold; that their estate in the property was merely contingent, and that neither of them acquired such an interest as to enable them to comply with the requirements of the contract by which they were bound to convey and assure to him an indefeasible estate in fee simple absolute in the premises. Thereupon it was agreed that this action should be commenced and submitted, upon the facts stated, for determination by this General Term.

The controversy arose upon the will of Franz Henry Miller, who died on or about the 16th of March, 1883. His will, which bears date the 25th day of May, 1869, and which was duly executed and attested, contained five clauses, as to the interpretation or construetion of tlie third of which a doubt is entertained by the defendant. The clause in question is as follows:

“I give and devise to my beloved wife, Johanna M. D. E., all the rest and residue of my real estate as long as she shall remain unmarried and my widow, but on her decease or remarriage the remainder I give and bequeath to my son Henry or his heirs.'’

The question presented therefore is, can the plaintiffs, being the "widow and son of the testator mentioned in the third clause, give a good title under the will % , The widow is gifted with a life estate as long as she shall remain unmarried, and on her decease or remarriage the premises are given to his son Henry or his heirs. We have not been favored with any points on behalf of the defendant, or any explanation of the views entertained by him or his attorney, whoever he may be, but suppose that it is the word “ or ” after the word “ Henry,” that occasions the doubt. It is not supposed for a moment that if the word were “ and ” instead of or,” there would be any question presented. The case of Moore v. Lyons (25 Wend., 119), which is approved in the case of Embury v. Sheldon (68 N. Y., 227), and also Livingston v. Greene (52 id., 118), and Kerr v. Bryan (18 N. Y. Weekly Digest, 569), establish rules of. construction by which Henry was vested with the fee upon the death of his father. As said by Chancellor Kent, in Moore v. Lyons (p. 143): “A remainder is not to be considered as contingent in any case where it may be construed to be vested consistently with the intention of the testator. The adverbs of time, therefore, such as when, then, after, from and after, etc., 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 interest.”

The clause in this will, however, as we have seen, is, but on her decease or remarriage, the remainder I give and bequeath to my son Henry or his heirs,” and by which the testator meant that the estate was to vest upon his death, but was not to be enjoyed in possession until the- death or remarriage of his widow. And this seems to be a recognized rule of construction in the cases already mentioned. It is to be noted in considering this question, as suggested by Chancellor Walworth, in Moore v. Lyons, that in the construction of wills in reference to the resting of estates, it is a well settled principle tbat the law favors the resting of estates, unless the intention be unequivocally expressed to the contrary. Here the testator intended, upon the decease of bis widow or upon ber remarriage, tbat Henry should have the estate if lie survived him, and if not, then bis heirs should have the estate upon the happening of either one of these contingencies. The word “ or,” to which reference has been made and in the connection m which it is placed, evidently referred to and was intended to provide against the death of Henry prior to the testator. In other words, be meant to vest the estate in Henry if be should survive him, and if not in his heirs. This is the rule of construction established by the cases already mentioned.

In the case of Kerr v. Bryan (supra), by bis will the testator gave all the residue of bis estate to bis daughter Anna, and to her heirs forever. By a codicil it was provided tbat in case of the decease of his daughter Anna, all tbat be bad devised and bequeathed to ber should go to ber children then living, share and share alike, and to them and their assigns forever. And it was insisted tbat under the codicil the daughter took only a life estate. It was held, however, that the words in the codicil, “ in case of the decease of my daughter ” referred to ber death prior to tbat of the testator, but outliving the testator tbat she took the estate in fee. This case is in point. No doubt, however, is entertained tbat the testator intended to vest bis estate in bis son Henry if be survived him, the possession to follow upon the death of bis widow or upon ber remarriage, and none, either, that under the rules of construction of kindred provisions an estate in fee vested in him, and therefore tbat the union of the widow and Henry in the conveyance will confer an absolute estate in fee simple under the provisions in the will considered.

The plaintiffs are entitled to judgment.

Davis, P. J., concurred.

Judgment for plaintiffs.  