
    Shepard v. Shepard.
    (Supreme Court — Special Term, New York County,
    February, 1893.)
    One S. conveyed to M. certain premises upon trust to receive the issues, rents and profits thereof, and apply the same to the use of said S. during the joint lives of the said S. and one P., whom he was about to marry, and, after the death of said S., to apply the same to the use of the said P. during the time of her natural life, provided, nevertheless, that should the said P. marry after the death of said S., the said trust thereby created was to cease and determine in like manner as if she were actually dead, and after her death, the fee in said premises, as well as the uses and profits thereof, were to revert to and vest in the heirs at law "of said S., at which time the trust created was to cease and determine. There was a recital in the deed that said P., upon condition- of the performance and execution of the said trust, released all her dower and right of dower in and to said premises. No power of sale wag given to the trustee, and the deed was signed by S. and P. On the death of said S. and P., an action was brought by an heir at law of said S. for a partition of said property. Held, that under the trust deed the children of said S., living at the time of his marriage to P., took a contingent remainder in the property described, subject to be defeated in the case of death before their father, and that upon the death of S., the remainder became a vested one and alienable.
    S. left a will, by which, after disposing specifically of various property, not including the premises in question, he gave all the rest and residue of his real and personal property to his widow and a daughter. Meld, that no portion of the premises in question passed thereunder as a part of his residuary estate.
    Action for partition of real property.
    
      J. F. Farkhurst, for plaintiff.
    IF". G. Feme, for defendants.
   Lawrence, J.

On the 9th day of October, 1852, John Shepard, who is the common source of title to the premises in question, being- about to marry Frances hi. Parmalee, conveyed said premises to Thomas hlcFarhn, upon the trust,” nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared. That is- to say, upon trust to receive the issues, rents and profits of said premises, and apply the same to the use of said John Shepard, party of the first part, during the joint lives of the said John Shepard and Frances hi. Parmalee, and after the death of said John Shepard, to apply the same to the use of the said Frances hi. Parmalee during the time of her natural life, provided, nevertheless, that should the said Frances hi. Parmalee marry after the death of said John Shepard, the said trust hereby created is to cease and determine in like manner as if she Avere actually dead, and after her death, the fee in said described premises, as well as the uses and profits thereof, all and singular, to revert to and vest in the heirs at laAV of said John Shepard, and the trust and trusts hereby created to cease and determine.”

Then follows a recital in the deed that Frances hi. Parmalee desires and intends to become the lawful wife of John Shepard, and upon the condition of the performance and execution of the said trust, releases all dower and right of dower which she might acquire as the wife of John Shepard.

Then follows a covenant between the parties, that the premises are to be made and kept free from all incumbrance, and if any mortgage remains still unpaid at the death of John Shepard, the same shall be paid out of other property of the said John Shepard, or the amount thereof paid to Frances M. Parmalee.

FTo power of sale was given the trustee. The deed was signed by John Shepard and Frances M. Parmalee.

At the time of the execution of the deed, John Shepard had four children, William S. Shepard, the plaintiff, James G. Shepard, George W. Shepard. and Lorena Allen, all of whom were living at the time of his death, and were his only-heirs at law, he having had no other children.

John Shepard died May 1, 1861; Frances M. Shepard died September 25, 1890 ; James G. Shepard died intestate June 1, 1889, leaving as his only heirs at law six children, Ella Y. Roe, Amelia A. Hallett, Cecila Trenchard, James Shepard, John Shepard and Malinette F. Seaman, and a widow, the defendant, Ellen M. Shepard.

In 1890, Ella Y. Roe conveyed her interest in the premises to the defendant, Donald McLean, and each of the other five children of James G. Shepard about the same time con veyed their respective interests in said premises to their mother, the defendant, Ellen M. Shepard.

The defendants, Ellen M. Shepard and Donald McLean, ■ claim to be owners of five-twenty-fourths and one-twenty-fourth respectively of said premises, as the share of James G. Shepard in the remainder vested in him by the deed of John Shepard to McFarlin.

After the death of John Shepard, and before the death of his widow, the' said Frances M. Shepard, the defendant, George W. Shepard, conveyed his fourth interest in said premises to plaintiff, and Lorena Allen having conveyed her fourth interest in the same to Frank II. Allen, the said Frank H. Allen conveyed the same to plaintiff.

John Shepard left a will, by which, after disposing specifically of various property, not including the premises described in the complaint, he gave all the rest and residue of his real and personal property to his widow, Frances M. Shepard, and his daughter, Lorena Allen, equally.

Frances 31. Shepard, the widow, died, as before stated, on September 25, 1890, not having remarried, and leaving her last will and testament, in which she named the defendants, Frances A. Koos and her husband, Gustave A. Koos, as executors thereof, and devised all her real estate to them, or the survivor of them, subject to the payment of certain annuities during the lives of the annuitants, which will was duly probated and letters issued to the defendant Gustave A. Koos, the defendant Frances' A. Koos not having qualified. Therefore, the defendants Koos, as trustees under the will of Frances 31. Shepard, and the defendant Gustave A. Koos, as the executor thereof, claim an undivided one-lialf interest in the premises as tenants in common with the heirs of Lorena Allen, by virtue of the will of John Shepard, deceased.

The plaintiff contends that he is entitled to three undivided fourths of the premises, having acquired the fourth interest of his brother, George 3V". Shepard, and of his sister, Lorena Allen, and being entitled to a fourth interest as one of the heirs at law of his father. The defendants, Ellen 31. Shepard and Donald FIcLean, who arc the grantees of the heirs of James G. Shepard, who died intestate, claim to be the owners of the remaining fourth part of the premises, the said Ellen claiming five-twenty-fourths and the said FicLean one-twenty-f'ourth thereof, by virtue of the conveyances to them by some of the heirs of James G. Shepard.

I am of the opinion, on this state of facts, that, under the trust deed executed by John Shepard to FIcFarlin, each of his four children took a contingent remainder in the property described in that deed, subject to be defeated in the case of death before their father, and that upon the death of John Shepard the remainder became a vested remainder. See Moore v. Littell, 41 N. Y. 66 ; Dodge v. Stevens, 105 id. 585 ; Henessy v. Patterson, 85 id. 92; Kelso v. Lorillard, Id. 177-184; Surdam v. Cornell, 116 id. 305; Ham v. Van Orden, 84 id. 257.)

The interest vested in the children of John Shepard by the trust deed was alienable under the cases above cited, as it follows, therefore, that the conveyances to George W. Shepard of his undivided one-fourth, and the deed from Frank H. Allen to the plaintiff of the other undivided one-fourth conveyed to him by Lorena Allen, added to the plaintiff’s own interest, made him the owner in fee simple of three-fourths of the premises mentioned in the complaint.

It also follows that the defendants, Ellen M. Shepard and Donald McLean, together own the one-fourth interest which James G. Shepard took under the trust deed, five-sixths thereof being vested in Ellen M. Shepard and one-sixth in the said McLean. It also follows that no portion-of the premises in question passed under the will of John Shepard as á part of his residuary estate to his widow and his daughter, Lorena Allen. The widow was entitled, under the trust deed, to the rents and profits during her life, and Lorena Allen succeeded as one of the heirs at law to one-fourth interest in fee, which interest, as we have seen, has become vested in the plaintiff.

The plaintiff is entitled to the usual judgment in partition, with costs.

The defendants, Ellen M. Shepard and Donald McLean, are also entitled to their costs. These costs should be paid out of the estate.

As the defendant, Frank H. Allen, was brought into the controversy by reason of the attack made upon the deed to him from Lorena Allen by the defendant, Walter S. Allen, and as no proof was given to maintain that attack, I am of the opinion that he is entitled to costs against the defendant, Walter S. Allen, personally.

I think, too, that the costs of the defendants Koos should be paid out of the estate.

Judgment accordingly.  