
    Greenhalgh v. Marggraf.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    Wills—Construction—Duration of Estate.
    Testatrix gave her husband all her property on condition that he execute to testatrix’s daughter, E., a bond and mortgage of certain of the property, “to secure the payment of $2,000 to my said daughter, should my said husband marry again. * * * It is my will that if my boloved husband remain single he shall enjoy the benefit of the property given, devised, and bequeathed as above for and during his natural life, and from and immediately after his decease I devise and bequeath the said property to my beloved daughter, E., and her heirs forever. ” Meld, that the husband had a life-estate in all the property on condition that, in case he remarried, he execute the mortgage for the payment of $2,000 to the daughter..
    Appeal from special term, Kings county.
    Action to determine the construction of a will, and for an accounting, by Emma L. Greenlialgh against Franz Marggraf. From the judgment entered, defendant appeals.
    Argued before Barnard, P J., and Dykman and Pratt, JJ.
    
      Wm. P. Piokett, for appellant. John McOrone, for respondent.
   Dykman, J.

The plaintiff in this action is the only child of Sophia D. Marggraf, deceased, and the defendant was her husband; and the rights of both of the parties are derived from the last will and testament of the deceased mother and wife. The portion of the will involved in this action reads as follows; “I give, devise, and bequeath to my beloved husband, Franz Marggraf, all my property, real and personal, subject to the condition, nevertheless, that he execute a bond and mortgage on my house and lot situate, lying, and being on the easterly side of Sixth avenue, in the city of Brooklyn,—said house is known as ‘ House Ho. 586,’—to my beloved daughter, Emma L. Marggraf, or her guardian, should she be a minor at the time of my decease. The bond and mortgage to be executed by my said husband is to secure the payment of two thousand dollars to my said daughter, should my said husband marry again, or, if my said daughter is a minor at the time of that event, then the said sum of two thousand dollars shall be given in trust to her guardian hereinafter appointed, until she has attained the age of twenty-one years, when her guardian shall put her in full possession of the said sum of money. It is my will that if my beloved husband remain single he shall enjoy the benefit of the property given, devised, and bequeathed as above for and during his natural life; and from and immediately after his decease I devise and bequeath the said property to my beloved daughter, Emma L. Marggraf, and her heirs forever. I nominate and appoint Andreas P. Anderson, of 212 Conover street, Brooklyn, as a guardian for my beloved daughter, Emma L. Marggraf. I hereby nominate and appoint my beloved husband, Franz Marggraf, executor of this, my last will and testament, and revoke all other and former wills made and executed by me.” The will was dated April 13, 1883. The testatrix died J une 26, 1887. The defendant remarried August 15, 1888, and the will was proved March 5, 1889. Upon the trial the plaintiff insisted upon a construction of the will which would terminate the interest of the defendant in the property upon his remarriage, while the husband insisted that the design of the testatrix was to give him a life-estate in the property, with remainder to her daughter, the plaintiff, provided the husband remained single; but that in the event of his remarriage he took the fee, upon payment of $2,000 to the daughter. The court, at the trial at special term, decided that the true construction of the will gave all the property to the defendant for life, with remainder to the plaintiff, but in the event of the remarriage of the defendant lie took the life-estate upon condition that he should execute to the plaintiff a mortgage upon the property for $2,000. Both parties were dissatisfied with the decision; but the plaintiff acquiesced, and the defendant appealed.

We can discover no merit in the appeal, for there is nothing to satisfy us that the testatrix intended to offer a premium to the defendant for his remarriage by an enlargement of a life-estate into a fee in that event, to the detriment of her daughter, for whom she provided with so much care. The great question for the defendant is whether his life-estate did not depend upon his remaining in celibacy; but, as the plaintiff has not appealed, we cannot consider that question. The judgment should be affirmed, with costs. All concur.  