
    Bernard W. Webel, Appellant, v. Frank A. Kelly, Respondent.
    First Department,
    March 9, 1906.
    Will construed — devise of life interest with, 'contingent remainders over — when life tenant cannot compel specific performance by vendee of contract of purchase.
    When a will directs the executor to hold specific real estate in trust and invest the income until an adopted son attains the age of twenty-one years, said property not to be sold during tlie lifetime of said adopted son, but to be conveyed to said son when he arrives at the age of twehty-five years, “ to beheld by him as follows: In case of my said adopted son departing this life before me or * * * after my death without leaving lawful issue, then I give all my property, real and-personal, * * - to my nephews * * * and my niece * * * and to their children,” the remainder to the nephews, in case of the death of the adopted son is made part of the trust, and said adopted son, though surviving the age of twenty-five years, and holding under a conveyance from the executor, is only a life tenant and the estate is charged with a contingent remainder to his issue, if any, and if not, then with remainders to said nephews and niece or their children.
    Hence, said adopted son cannot specifically enforce the contract of a third person to purchase said lands.
    Houghton- and McLaughlin, JJ. (concurring in result only): The will should be construed to give the plaintiff absolute title, but as there are doubts as t.o this, the vendee should not be required to perform specifically.
    Appeal by the plaintiff, Bernard W. Webel," from a judgment. of the Supreme Court in favor of the' defendant, entered in the office of the clerk of the county of Mew York on the lltli day of October, 1905, upon the decision of the court rendered after- a trial at the Mew York Special Term.
    
      William H. Klinker, for the appellant.
    
      August C. Nans, for the respondent.
   Ingraham, J.:

The action was for specific performance of a contract for the sale of real property by which the plaintiff agreed to sell to the defendant a certain piece of property in Forty-third street, in the city of Mew "York, of which .property Henry Bernard Webel was seized at the time of his death. He left a last will and testament in which, after certain bequests, he provided : “ All the balance of my real estate, including, my house and' lot No.. 35 West 43rd street, (the property in question) I direct my executor to. hold - in trust and which I specially • direct shall not be sold during'.the lifetime of mv said'adopted'son, but that my executor collect all the- rents, issues and. profits.thereof, and .after payment of -taxes, assessments' and other necessary expenses," I direct tpe same to ■ be. invested in the same manner and the.interest devoted, to the said purposes aé. above specified and payable in the same manner in point of time to my said adopted son after he shall arrive at the age of twenty-one., years and until- he shall arrive at the age of twenty-five years. Next, on the arrival- of my said adopted son at the age-of twenty-five years, I direct my said executor to. convey all my real éstate I may so own unsold and aill securities and other property moneys, principal and interest to my said adopted son»to be held by him as follows :'

“TV.- In.caseof my said adopted son departing this-life before me or in case of his so departing this life after my death "without leaving lawful issue, then -I give all my property, real and personal" and of every kind to" my nephews Louis Webel, Charles Webel, and my .niece Caroline Webel, sons and daughter of my deceased brother Lewis, to be owned by- them equally, share, and share alike", and to their children, per stirpes and not per capita, and in casé of the -death- of iny said adopted son before the age of twenty-five yéársj'.without such - issue, I hereby make it a part of the trust that my executor" shall see this last provision of my. will carried into effect, -and sConvey said property above named to -my said- nephews and niece.”' -. . " . -

The plaintiff Was the adopted son of the -testator. When. he. arrived at the age of twenty-five years the executor and trustee conveyed the property-to the plaintiff. The conveyance recited that -it was by virtue of the power and authority to him" given-by the foregoing will, arid- conveys the estate that the testator had at the time of li-js decease and- thé éstate which the trustee had povver to convey or dispose of. The estate to: which the adopted soil, would be--entitled' und'e'r this clause of the will was “to be held by him as follows; ” that Was, in case of his departing this life after the death of- -the testator,. without leaving lawful issue, the. property érty was to-go to-the testator’s nephews and niece. There was. no general devise of the property to the plaintiff. His sole title to it was through a conveyance from the trustee, under the direction of the will, by which the trustee was directed to convey the property to the plaintiff upon his arrival at the age'of twenty-five years, to be held by the plaintiff under this clause of the will. I am inclined to think that this gave to the plaintiff a life estate in the property, with remainder to his issue. The trustee made provision for the support of the plaintiff prior to his arrival at the age of twenty-one years. He then gives to the plaintiff the total income of the property while he is between twenty-one and twenty-five years of age. During that time the trustee is to remain in possession of the property, paying to the plaintiff the income. When he arrives at the age of twenty-five years provision is made for a conveyance of the property by the trustee to the plaintiff, “to be held by him as follows,” and then coines the provision that if the plaintiff should die before the testator, or after the death of the testator without lawful issue, there should be a remainder over. This remainder over is to happen in the event of the death-of the plaintiff after the testator’s death, and is not limited to his dying before he reaches the age of twenty-five years, as by the 3d clause the plaintiff would have no title to the property until he arrived at the age of twenty-five years, and the property so to be conveyed was thereafter to be held by the plaintiff as provided for in the 4th clause of the will.

The evident intent of the testator was to provide that this property should go to his adopted son, the plaintiff, and his children; but if he left no children, then the property should go to his nephews and niece. I think, reading the 3d and' 4th clauses together, thatxthe plaintiff- took a life estate in the property with a remainder over to his issue; but in the event that he died without issue, there was a limitation over by way of executory devise to his nephews and niece; that this was not dependent upon the plaintiff’s dying without issue prior to his arriving at the age of twenty-five years, for such a contingency is provided for in the same clause of the will, as, in that event, namely, the death of the plaintiff. i before arriving at the age of twenty-five years, the testator directs that his executor shall enforce the provision and convey the property to his nephews and niece. This intention is strengthened by' the provision in the 3d clause of the will that the property should-not be sold during the life of the plaintiff. It can be effectuated by holding that the plaintiff took a life estate in the property only.

This construction of the will is sustained by Vanderzee v. Slingerland (103 N. Y. 47). In- that case the testator’s son Cornelius entered into possession of the property under an express devise thereof'contained in the will of "the testator. By that will the testator provided that all of his real estate “I devise to my son Cornelius, subject to the proviso- hereinafter contained.” The will then made certain charges upon the property, consisting of annuities to his wife, daughters and grandchildren, and then' provided: “ In conclusion, my will is that if my son Cornelius dies without issue, that then the estate herein devised to him' shall go to my grandchildren, hereinafter named.” It was held that this clause referred to the death of his son Cornelius after the death of the tes-, tator; that in that even,t, on the death of -the testator the grandchildren took a contingent interest under the will by way of executory devise which., .on the death of Cornelius without issue, was. converted into a fee in them, thereby displacing and subverting the conditional fee before that time vested in Cornelius.

I think, therefore', that the plaintiff could not give a good title to the property, and that the judgment should be affirmed, with-costs.

O’Brien, P. J., and Clarke, J., concurred.

Houghton, J.

(concurring):

I arii of the -opinion that the plaintiff has an absolute, title to the premises in controversy. . .

He was thirteen years of age when his adopted father made the will in question. The dominant idea running through the will is that- the plaintiff should be cared for by the executor named until he should arrive at the age of twenty-five years, and that if he died prior to that time without issue, then that the property should go elsewhere." ■

The .will is in artificially drawn and Words are used quite regard- - ,less of their meaning. It is "true that it prqvides -that the premises Ho. 35 West Forty-third street shall not be sold during the lifetime of the'plaintiff, but following that provision aiiu in a new sentence beginning “Hext,” it is provided that'l on the arriyal of my said, adopted son at the age of twenty-five years, I direct my said executor to convey all my real estate I, may so own unsold, and all securities and other property, moneys, principal and interest, to my said . adopted son, to be held by him as follows.” Little significance, it seems to me, should be given to the words to be held by him as follows,” for nothing follows as to 'the manner in which lie shall hold, but only a further clause of the will, denominated “Fourth.” The direction to the executor to convey of course' is equivalent-to an absolute devise of the real estate and gift of securities. In the "4th clause it is provided that in case the plaintiff shall die before the testator’s death, “ or in case of his so departing this life after my death, without leaving lawful issue,”, then all real and personal property is given over to the children of .a deceased brother. But directly following the statement that they shall s'o take per stirpes, and not per capita, is the language, “ and in case of the death of my said adopted son before the age of twenty-five years, without such issue, I hereby- make it a part- of the trust that my executor shall see this last provision of my will carried into effect and convey said property above named to my said nephews and niece.” This language indicates that the testator meant that the property should so pass to his nephews and niece in case the plaintiff should die without issue before he arrived at the age of twenty-five years, and meaut nothing more. The language last quoted is the last used by the testator on that subject, and is in accordance with the last provision of the 3d paragraph of the will.

It seems to me, too, that considerable significance should be given to the direction to the executor to “convey” to the nephews and niece. The executor was commanded to look after the property and pay the income to the plaintiff until he should arrive at the age of twenty-five years. The testator assumed that his executor, whom he also made testamentary guardian of the plaintiff, would live until that time arrived ; but it is quite improbable that he also considered that his executor would outlive the plaintiff, and so be able to know whether he died without issue and thereby be in position to convey the real property to the substituted devisees,.and turn over to them the personal property which had originally come to his hands. s

, The construction to be given to the will involves the title to the entire estate as well as to the premises in question-, and neither the executor of tile, will nor the substituted, legatees are parties hereto. It would be much more satisfactory to construe the will in a direct proceeding for that purpose, in which all-persons interested should, be made parties: and be heard as to their respective rights. ■

• However, I agree that there- is a. doubt concerning-, the plaintiff’s title, and that the défendant ought not to be compelled to 'specifically. perform, -an’dj therefore, concur in an affirmance of. the .judgment. • ■ ■ " .

McLaughlin, J., concurred.

Judgment affirmed, with costs.  