
    Isabelle M. Runyon and Others, Respondents, v. John B. Grubb, Appellant.
    Second Department,
    April 19, 1907.
    Real property—will—when remainders vested —when title marketable.
    When a will devises real property to the testator’s widow during her natural life or widowhood and in case of her death or marriage the lands to be divided equally “between my surviving children and" if any one or more of them shall have died leaving legitimate issue then such issue shall have and take the share his parent would have received if still living,” the remaindermen, who are to be ascertained at the death of the testator and not-at the death of the widow, take vested remainders. Hence, a title offered by the life tenant and remaindermen jointly is marketable. , _ -
    Appeal by the defendant, John B. Grubb, from a judgment of "the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 9th day of July, 1906, upon the decision of the court, rendered after a trial at the ■ Westchester Special Term, directing the specific performance '.by the defendant of a contract to purchase from the plaintiffs certain real estate in the city of Yonkers.
    ‘ Frank B. Lown, for the appellant.
    
      Philip M. Brett, for the respondents.
   Woodward, J.:

There is no dispute as to the facts- in this case.' The only question arises: as to. the construction to be. placed upon the will of Charles Runyon, deceased, upon which depends whether the plaintiffs were able to convey a marketable title. ’ The will was written . by. the testator, who was not. a lawyer, and is very simple in its provisions; Omitting the formal portions, the. will provides as follows:

“First. I give and bequeath unto my beloved wife, Isabelle Merceih Runyon,'all. the real and personal property which I. may have ■ ! or be possessed'.of at the time of my death, for her .support du.r-' ing her natural life or widowhood, and in case of her death or marriage, the whole estate, both real and personal, tó be divided equally, share and share alike, between my surviving' children, and if any .one or more, of them shall have died leaving legitimate issue, such issue shall have and take the share its parent' would have received if still alive".

Second. I hereby constitute and appoint my sons Carman R. Runyon and Arthur S. Runyon, and on his reaching majority, my ! son Charles Runyon, Junior, my executors and trustees, without bonds, of this my last will, directing, my said executors to pay all my just debts and funeral expenses.”

All of the children of Charles Runyon survived him ; all are of • full age, and they, with their mother, the widow of Charles Runyon, joined in' a contract with the .defendant for the sale.of the premises , here involved.. The defendant refused to take title, alléging that' the children of Charles Runyon, deceased, had no vested interest in the premises. The plaintiffs brought an action for specific perform- .. anee, and the court below has decreed such performance, the defendant appeals and urges that the will makes no present gift to the children, speaking from the date, of testator’s death, and that their interest is contingent upon the death or remarriage .of the widow. The rule is invoked on the part of the appellant that futurity is of . the essence of the gift, and that the legacies are contingent and do not vest until the time for distribution arises; that the gift is to a class the members of which cannot be determined definitely until the time for distribution. • .

As we look at this will, it seems to be one where it would be entirely improper to- invoke any highly technical rules of construction. There was a single, direct, purpose to provide for the widow during her life or until she remarried, and to dispose of the propérty to his children ; a life use was. all that- was to go to the widow, the estate vesting in the children subject to this use, and “ where, from the examination of the whole will it is apparent that it was the intention of the testator that the estate should vest in the beneficiaries immediately upon his death, the rule governing where there is merely a direction to divide at a future time must be subordinated to that broader rule which requires that the intention of the testator shall control where it can be ascertained within the four corners of the will.’ ” (Matter of Crane, 164 N. Y. 71, 77.) There was no effort to vest the estate in trustees; the language is that he gives and bequeaths the property to his wife “ for her support during her natural life or widowhood.” The purpose for which the gift is made limits its ownership to her support for life or during her widowhood; it is a mere use of. the property, and upon the termination of the life estate the property is to be divided equally among his surviving children. He makes no mention of the children who are to survive the widow; ■ it • is “ my surviving children ” who are to take, and if any of them shall have died, leaving lawful issue, the survivors are to take the share that the parent would have taken. This language speaks, not of a survival of the widow (it was the distribution only which was postponed to that time), but of the testator; the postponement of the payment • was for the purpose of letting in a life estate for the widow, and in such a case the interest is deemed to vest at the death of the testator, the class of legatees being determined as of that date, under an exception,.well recognized, to the rule invoked by the appellant.

(Matter of Crane, supra, 76.)

All- of .the parties in interest were parties to the contract here under consideration; the plaintiffs jointly own the . premises in question and llave a present right to convey the . same. The judgment should, therefore, he affirmed, with costs.' .

. Hirschberg, P: j.', Jenks, Hooker and Gaynor, JJ., concurred.'

Judgment affirmed, with costs.  