
    Catharine E. Van Cortland, Pl’ff, v. Mary A. Laidley et al., Impl’d, App’lts. Ewen McGillis et al., Resp’ts, v. Mary A. Laidley et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    
      . Wills. — Devise of remainder to issue. — Decision in action for construction OF WILL DOES NOT AFFECT AFTER BORN CHILDREN.
    William. Caldwell, a bachelor, died in Albany in 1848, and left a will by which he devised to Eliza McGillis certain real estate for life, and, after her decease, to her husband, John McGillis, for his life, and after the decease of Eliza and John, he gave the remainder or fee to the lawful issue of said Eliza in such proportions, if the issue consisted of more than one person, as they would by the laws of this state have taken from her, in case she and they were native born citizens of this state, and she had then died intestate, lawfully seized in fee simple. Eliza was native born, but in 1820 had married in Canada John, a British subject, and all their children were born in Canada. The heirs-at-law of William Caldwell were his sisters and their children. In 1848 a suit was brought to construe his will; to which all heirs, John and Eliza McGillis, and all their children then living were parties. In this it was held that the children of John and Eliza could not take the remainder because they were aliens when Wm. Caldwell died, and that the remainder vested in the heirs-at-law. On the basis of this decision, some heirs-at-law brought an action of partition in 1851 against Eliza and against other heirs, but the children of Eliza were not parties; the report of commissioners to make partition was confirmed, but no final decree was ever entered. After Wm. Caldwell’s death four children were born to Eliza, and four had been born before his death. In May, 1887, by chap. 310, the people released their interest in the premises, and authorized the issue of Eliza to hold lands. In June, 1887, the four children born before Wm. Caldwell’s death quit-claimed to the four born after it. In 1888, upon proof that no decree had ever been entered in the partition action, Eliza and the after born children were allowed to bring a cross-action against all other plaintiffs and defendants in the partition suit to determine whether the remainder did in fact go as decided in the suit for construction of the will. At special term the report, etc., in the partition suit was modified so as to adjudge that the remainder belonged to the issue of Eliza born after the death of Wm. Caldwell. Held, correct; that the decision in the suit for construction could not affect the rights of the after born children; these are to be determined by the will, and by the law as it is found when the children come into court as claimants.
    2. Same.
    If there was a vested remainder in the lieirs-at-law, this was subject to open and let in the after born children, their disabilities having been removed, and the claim of the people having been released.
    3. Same. — Devise to class. — Aliens.
    Where a remainder is devised to a class, of which some are incompetent to take, those of the class who are competent take what was intended for all.
    Appeal from judgment in action for partition, and from judgment in cross-action, determining who is entitled to the remainder after the termination of a life estate.
    
      Bartlett, Wilson & Hayden (Marcus T. Hun, of counsel), for resp’ts; Matthew Hale, for app’lts.
   Mayham, J.

This is an appeal from a judgment of actual partition and a judgment in a cross action adjudging and determining who is entitled to the interest of Eliza McGillis, a life tenant, afte her. death and the death of her husband, John McGillis.

The questions arise out of the provisions of the will of Wil liam Caldwell, late of Albany, deceased, upon facts agreed upoi by the parties.

William Caldwell, a citizen of the United States, residing a Albany, N. Y., made his will and codicil, dated respective!} March 29 and December 29, 1841, which were admitted to pro bate as a will of real and personal estate in August, 1884. Tin wdll named four executors, none of whom qualified but Theodrick Eomeyn Becjr.

The testator was a bachelor, and his heirs-at-law were his three sisters, Jane, Harriet and Ann Maria, and their three' children.

Jane married Stephen Sewell, of Montreal, Canada, and theii children were aliens. But in 1830 the legislature of New York passed an act removing their disability to inherit as aliens, and conferring upon them the capacity to inherit William Caldwell's property. Harriet married Theodrick Eomeyn Beck, of the city of Albany, and Ann Maria married James Low, also of Albany. All of the sisters above named died before the testator, each leaving children surviving.

The testator by his will devised to Eliza McGillis certain real estate for life, and after her death to John McGillis for life, and after his death, or the death of both the life tenants, the remainder in fee simple to the lawful issue of Eliza McGillis, then living, in the same proportion as they would inherit from her under the laws of New York if she were an inhabitant, if she and- they were native born citizens of that state, and she had died intestate, lawfully seized of such property in fee simple. ' ‘

Eliza McGillis was a native born citizen of New York, but on the 24th of September, 1820, was married in Canada to John McGillis, who was a native born subject of Great Britain, and all of the children born of such marriage were born in Canada.

Shortly after William Caldwell’s death and the probate of his will a suit was brought by the only acting executor to obtain a construction of the will.

All of the testator’s heirs and Mrs. McGillis and her husband, and all of her children then living, were made parties to that action.

On the trial at special term, Harris, J., held that Mrs. McGillis had not forfeited her citizenship by marrying an alien and residing abroad, but that her children could not take the remainder devised to them because, they being aliens at the time of the testator’s death, the devise to them was void, and that the remainder devised to them vested in the heirs-at-law of the testator on his death ; each of the three sisters, if they had survived the testator, would have taken one-third, and the children of the deceased sister one-third of such remainder per stirpes.

Upon the authority of this decree, some of the heirs-at-law of the testator brought an action against Mrs. McGillis, as devisee, and the other heirs-at-law of the testator, for the partition of the real tote devised to Mrs. McGillis for life, but none of her children ere made parties to that action.

By the commissioners’ report, the life estate devised to Mrs. bGillis was set apart to her, and the remainder was by the intercutory judgment partitioned between the heirs-at-law of the tester, and the report of the commissioners was confirmed by the ■der of the court.

But no final judgment or decree was ever entered on that ¡port. Four of the children of Eliza McGillis were born before le death of the testator, and four others were born after his sath. The four children born prior to the testator’s death, by sed dated June 20,1887, conveyed to the four children born after is death all the right, title and interest which they then had, or light thereafter acquire in the lands devised to them in and by xe will of William Caldwell, deceased.

The said after born children and grantees in that. conveyance ring this cross action.

On the 12th of May, 1887, by chap. 310, Laws of 1887, it was □acted as follows: “ All estate, right, title and interest which xe people of the state of New York now have or may hereafter squire in and to the lands devised by William Caldwell of the ity of Albany * * * to his daughter Eliza McGillis for fe and then to her husband John McGillis for life, should he irvive her, and from and after their decease to the lawful issue f the said Eliza McGillis then surviving, by reason of the aliention of such issue, is hereby granted, released, conveyed, and ult-claimed to the said lawful issue of the said Eliza McGillis ow or hereafter born and their heirs and assigns forever, and rev are hereby authorized to take, hold, sell and convey said mds and premises or any interest they or either of them may ave, in the same manner and with same effect as -if they were itizens of the United States at the time of the death of WilliamJaldwell.

“ Nothing herein contained shall be held or construed to affect □e right, title, interest, claim or demand of any heir-at-law, deisee, grantee or vendee.”

On the 9th of March, 1888, on the petition of Mrs. McGillis and er children born after the death of the testator, and other roof from which it appeared that no final decree had been made i the action for partition, an order was made under § 760 of the lode of Civ. Pro., allowing the after born children to commence cross action against all the other parties plaintiff and defendant 3 said partition suit, limiting the questions triable in the cross ction to the question whether the remainder in the property deised and partitioned to McGillis (Mrs.) for life passed as decided □ fche construction suit, and followed by the report of the comrissioners in the partition action, to William Caldwell’s heirs, or o the lawful issue of Eliza Md&illis, for whom the plaintiffs in he cross action prosecute as a class as well as for themselves.

The learned judge at the trial directed that the. interlocutory rder or j udgment in the partition action, and the report of the ommissioners and order confirming the game, be so modified that it he ordered, adjudged and decreed that remainder in fee be longed to the lawful issue of Eliza MeGillis, who were born subse quent to the death of William Caldwell, the testator, and not t< his heirs, and allotting the same to her lawful issue her surviving and their assigns, as provided in the will and codicil in fee.

Judgment was entered accordingly, and appellants appeal.

It is insisted on the part of the appellants that the judgment ii the action of Beck, Executor, v. McGrillis, reported in- 9 Barb., 35 construing the will of William Caldwell, is conclusive upon al the parties to that action, and vested the title to the remainder o the lands devised to Mrs. McGillis, after her death, absolutely ii the heirs-at-law of the testator, 'and that that vested estate thus fixed by the decree of a court of competent jurisdiction cannot ir another action be divested, or the regularity or validity of tha1 decree attacked collaterally in this action. The language of that decree is as follows:

“It is now adjudged and decreed and this court, by virtue ol the power and authority in it vested, doth adjudge and decree that the devises and bequests contained in the first clause ■ of the last will and testament of William Caldwell, late of the city ol Albany, deceased, dated the 29th day of March, 1841, and the codicil thereto,. dated December 29th, in the same year (which said will and codicil are set out at length in the complaint herein), in favor of his daughter, the defendant, Eliza, wife of John MeGillis, and whereby an estate for life is given and bequeathed to the said Ann Eliza MeGillis m certain real and personal estate therein mentioned, is valid, and that the provisions in said will and codicil in favor of the said John MeGillis, the husband of the said Eliza, and of the said Charlotte MeGillis, Elizabeth MeGillis and Eeginald MeGillis, infant children, of the said Eliza MeGillis, so far as they relate to the personal estate thereby bequeathed to them after the death of the said Eliza MeGillis, are valid ; and so far as they relate to the real estate thereby attempted to be devised to them the same are void by reason of the alienage of the said John MeGillis and the said infant children, and of no effect or validity whatever; and that the said real estate in which an estate for life is devised by the said will and testament, and the codicil thereto, to the said Eliza MeGillis, vested in the heirs-at-law of the said William Caldwell, deceased, on his death, subject only to the life estate of the said Eliza therein, and the defendants Catharine Eliza, wife gf Peter Yan Cortlandt, Helen Louisa, wife of William Parmelee, being each entitled to an undivided one-sixth part thereof; the defendant James Caldwell Low to the undivided one-third part thereof; the plaintiff Edward Quinsey Sewell, and the defendants Charlotte, wife of John Humford, Mary, wife of Charles Jones, Augusta, wife of Philip Duenfoid, Jane Ann Jameson and Stephen Charles Sewell, each to an undivided one-sixth part of the ,ren^&ning one-third part thereof, subject to the life estate of the said Eliza MeGillis therein as aforesaid.”

It will be seen from the decree above quoted that Judge Harris, he learned justice who was called upon in an action brought for that purpose to give a judicial construction to this will, not only declared the invalidity of the provisions thereof, so far as it assumed to devise the remainder in fee of the real estate in controversy in this action, but in the same decision and decree settled, if a decree in that action could settle, the ultimate right of the parties to the remainder in said lands as to which by his decision the testator died -intestate by reason of the alienage of the devisees of such remainder.

The doctrine is quite elementary that the judgment of a court of competent jurisdiction is conclusive between the parties to it, who had their day in court, and as to them it cannot be attacked collaterally in another action as to matters in issue or properly tried in the former action.

And even where some doubt may exist as to the right to maintain an action in a given case, yet when a judgment has been rendered in a court having general jurisdiction of the subject matter and the parties, they are concluded by the decree pronounced and unreversed upon the issue to which they were parties in the action. Blakeley v. Calder, 15 N. Y., 617.

Nor can the right of an executor to come into a court of equity and ask for and receive a judicial construction of a doubtful or obscure provision of a will be questioned, Bailey v. Briggs, 56 N. Y., 407, especially where the answer to the inquiry propounded involves the correct administration of the powers in the will, or the construction of a doubtful and disputed clause in it

But whether in an action for the construction of a will, the court after declaring one of its provisious void, and in effect that the deceased died intestate as to the property intended to be devised by the void provisions, the court can follow the property so-left out and dispose of the same between the heirs-at-law, is a question admitting of more doubt.

There are no allegations in the complaint in the action for judicial construction of this will setting up the respective rights or interests of the heirs-at-law of William Caldwell, and asking any adjudication of their rights as between themselves in that action, and while it is obvious that on the failure of the testator by his will to dispose of all his property, the part so undisposed of would fall back into his estate and descend to his heirs-at-law, that result would follow not by virtue of the decree of the court, but rather by operation of the laws of descent.

The estate of the heirs-at-law of the testator to this remainder was, therefore, if it existed at all, created by the death of the testator intestate as to this remainder in fee. 1 B. S., 726, § 41. But if it be conceded that this decree was effectual and binding as between the parties to it, still it is admitted by the appellants that, as to after-born children, not parties to that action, it is wholly inoperative. Monarque v. Monarque, 80 N. Y., 320. But it is insisted by the appellants that, at the death of the testator, the remaindermen named in the will not being eligible to take under the devise, the fee of the real estate devised to Eliza for life became a vested remainder in the heirs-at-law of the testator, subject to be defeated only by the death of the remaindermen, or by death without issue before the termination of the life estate. In Moore v. Little, 41 N. Y. (2 Hand), 66, relied upon by the appellants in support of this contention, it was held that under the Revised Statutes a grant to A. for life, and after his death to his heirs and their assigns forever, gives to the children of the latter a vested interest in the land, although liable to open and let in after-born children of A. In Van Axte v. Fisher et al., 117 N. Y., 401; 27 N. Y. State Rep., 257, also referred to by appellant upon this point, where a testator devised his residuary estate to his executor, with power to sell and invest the proceeds, and apply the income to H. during his life, and after D.’s death gave the balance to J., who died before £>., it was held that J. took upon the death of the testator a vested remainder, and his interest on the expiration of the trust descended to his heirs.

In Shipman v. Rollins et al., 98 N. Y., 311, where the testator’s will provided for the sale of enough of liis real estate, and invest the proceeds to furnish an income to be applied to the support of his wife during her life, and after her death to sell the balance of his real estate, add the proceeds to the sums already invested, and after paying certain specified sums, to divide the balance between certain religious societies not then incorporated, it was held that the legacies so given did not vest until after the death of his widow, but I think this case is distinguishable from the ones above cited, and that the rule is stated in Moore v. Little, supra, “If there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the present estate, then that remainder is vested.”

But it must be conceded in this case that as to after born children of Mrs. McGfillis, the decision in the action for the construction of the will can have no application; their rights must be determined under the will and the law as it is found when they appear upon the scene claiming under the will.

If by the will they are then the object of the testator’s bounty, their rights must be protected and enforced by the court.

Let us assume, for the purpose of testing the rights of these after-born children, that at the time of the testator’s death Mrs. MeGillis had no children, and that she and her husband were both citizens of the United States, and that the will gave her a life estate, and after her death devised the remainder to her children, her surviving, is there any doubt but that her after-born children living .at the time of her death would take the remainder devised to them ? And yet a technical vested estate in remainder would have devolved upon the heirs-at-law of the testator, the same as in this case ; but it would be subject to be defeated by the happening during the life of the life tenant of an event which would furnish one competent to take under the provisions of the will.

It is conceded by the appellant .that after-born children may take under this will, if competent to take and hold lands by devise under the law.

If, therefore, after-born children can take in the case supposed, what can prevent them from taking in the case at bar,'if all their disabilities under the statute relating to aliens have been removed ?

The testator in this case, as in all cases, had a right to dispose of his property by will in any manner that was agreeable to himself, so long as he violated no law of the country.

It was competent for him to provide in it that the children of Mrs. McGillis living at the time of her death should take his property, and any child, and the descendant, if any, living at that time, and competent to take real- estate by devise, could take under that provision, and this brings us to the question, are the plaintiff and other after-born children of Mrs. McGillis competent to take and hold real estate by devise?

The statute seems to apply only to persons who are aliens at the time of the death of the testator; the disability is created purely by statute, and should not be extended so as to defeat the will and wishes of the testator to carry out the provisions of the statute. The language of the statute is, 2 R. S., 57, § 4:

Every devise of any interest in real property to a person wheat the time of the death of the testator shall be an alien not authorized to hold real estate, shall be void; the interest so devised shall pass to the heirs, or, failing in heirs, pass into his residuary estate.

In Wadsworth v. Wadsworth, 12 N. Y., 376, this section of the statute was construed, and the court held that at common law an alien could take real estate by devise, but cannot hold it as against the state.

That the disability created by the statute above quoted did not apply to alien devisees born after the death of the testator, and that accordingly the son of a British subject, who was born in Egypt, where bis father had been sent as British minister, could take lands situate in this state devised to him by the will of his father, and hold the same as against the heirs-at-law of the testator; and this case has been cited with approval in 20 N. Y., 324; 28 N. Y., 15; 43 N. Y., 181.

It would seem to follow, therefore, that the devisees of the testator, to whom were devised the remainder of the real estate devised to Mrs. McGillis for life, could take under such devise and hold as against the heirs-at-law of the testator, independent of the provisions of ■ the statute under which it is claimed all the disabilities of the plaintiff„and other after-born children of Mrs. McGillis were removed. Chapter 120 of Laws of 1872 provides that the real estate of a female citizen of the United States, notwithstanding her marriage to an alien and residence in a foreign country, shall descend to her lawful children, etc.

This statute however does not in terms apply to this case, as Mrs. McGillis was not the owner in fee of the real estate in question. Chap. 42 of the Laws of 1889, goes farther and provides, “ Nor shall the title to any such real estate which has or which shall descend or which has been, or shall be devised, or conveyed to such woman or such foreign born children or descendants, be impaired or affected by reason of her marriage with an alien, or the alienage of such children or their descendants.”

By chap. 310 of the Laws of 1887, to which we have before referred, all the disabilities of the heirs of Eliza McGrillis are removed and the interest of the state released to the children and devisees in the will of William Caldwell, deceased.

While the right of the after-born children does not appear to be strenuously resisted by the appellants, it is insisted if they have any rights, under this will, it is only to the one-half and does not include the half which the children of Mrs. McGrillis living at the-time of the death of the testator would have taken under said will if not ineligible.

The will in this case devises the remainder to a class, viz.: the children of Eliza McGrillis living at the time of her death, and the rule seems to be that where some of the devisees of a class are incompetent to take, either by death, alienage or other disability, the remainder of the class takes what was intended for all.

In Downing v. Marshall, 23 N. Y., 366, it was held that where, by reason of legal incapacity, but one of a class can take, that one takes all of the estate which the devise by its terms gives to the whole class. This case has been cited with approval in a large number of cases down to as late as 41 N. Y., 292; 52 Barb., 307.

We think on the whole case that the judgment of the special term was correct

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.  