
    In the matter of the petition of Bridget Hyde for an order directing and requiring Ellen Gage to produce John Lane and others, tenants for life of certain real estate.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June, 1886.)
    
    Life tenant—Order for production of under the statute.
    Where by a will, land is devised to the daughter of the testator in fee, and in case of her death without issue to his nephew for life, and after his death to another, the estate of the first devisee is a base or determinable fee, and the case is not within section 3302 of the Code of Civil Procedure, providing for the production of a life tenant. The statute applies only when the prior estate is a life estate. The fact that the fee is liable to be reduced to a life estate upon the happening of the contingency, will not suffice.
    The petitioner bases the proceedings which she has instituted upon the provisions of section 2302 of the Code of Civil Procedure She claims to be entitled to the real estate described in the petition, if Maria McLean be dead without issue of her body surviving, and if one John Lane be also dead, as is averred in the petition. By the last will and testament of John McLean, which was admitted to probate in the surrogate court of Erie county on the 17th day of February, 1865, he gave and deviséd to his daughter, the said Maria McLean, her heirs and assigns forever, the lands in question, upon this proviso or contingency: “But in case my said daughter, Maria McLean, should die without issue, then I give and devise to my nephew, John Lane, son of my brother, Patrick Lane, the above described preim ises, to have and to hold the same during his natural life, and after his death to my daughter, Bridget McLean, and to her heirs and assigns forever.”
    The petitioner is the Bridget McLean mentioned in this clause of the will. It is averred in the petition, upon information and belief, that Maria McLean intermarried with one Clark, and that she died more than one year ago, without issue, and that she believes that John Lane is now dead. The respondent, Ellen Gage, is in possession of the premises, and in her answer she denies that either Maria McLean or John Lane is dead, and avers that both are hying. The petition was presented at the Erie county special term, and, after hearing the parties, the court denied the application, without costs, and from that order the petitioner appeals.
    
      O. C. Cottle, for petitioner; Tracy C. Becker, for respondent.
   Barker, J.

The special term properly dismissed the petition and the order should be affirmed We place our concurrence upon the ground that upon the conceded facts no case was made within the statute requiring the respondent, Ellen Gage, to produce Maria Clark, the alleged life tenant of the premises. Whether or not she was a life, tenant depends upon the provisions. of the will of John McLean. The respondent contends that by that will Maria Clark took a fee simple absolute, and that the petitioner, Bridget Hyde, named in the will as Bridget McLean, the daughter of the testator, would have no estate in the lands, although Maria Clark be dead, and left no issue surviving as she survived the testator. This contention on her part is placed upon the ground that the proviso or contingency expressed in the words: “But in case my said daughter Maria McLean shall die without issue,” refers to the time of her death happening in the life time of the testator and as she survived the testator she at once, upon his death, became the absolute owner.

The petitioner maintains that Maria McLean took only a contingent estate in the fee, which was reduced to a life estate when the contingency named in the will happened, to wit: “Her death without issue.” In support of her position as to the proper construction to be placed on the will her counsel cites Buell v. Southwick (70 N. Y., 581); Nellis v. Nellis (99 N. Y., 505; S. C., 3 East. Rep., 423).

It was held that by the respective wills under consideration, in those cases, the primary devisee took only a contingent estate in fee, which was hable to be reduced to a life estate in case of the devisees death without children or any descendants of children. The petitioner bases her claim of title and the right to the possession of the premises upon the ground that by the will of John McLean, Maria Clark took only a life estate in case she died without issue.

The statute authorizing summary proceedings for the purpose of ascertaining whether a life tenant is dead or not, has no application to a case like' the one now presented. The title of the Code regulating the proceedings is entitled, “ Proceedings to discover the death of a life tenant.” The section upon which the petition is based provides:

A person entitled to claim real property after the death of another who has a prior estate therein, may, not oftener than once in each calendar year, apply by petition to the supreme court * * for an order directing the production of the tenant for life, as prescribed in this title, by a person named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead; or when there is no such person, by the guardian, husband, trustee or other person who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate.”

In ease an order is granted, the person to whom it is directed is required, at a time and place therein to be mentioned, before the court or referee therein designated, to produce the person upon whose life the prior estate depends, or in default thereof to prove that he is living, (Section 2305).

The form and effect of the final order, if one is granted in support of the proceedings, is found in section 2310, which provides:

“ That if it appears that the person upon whose life the prior estate depends was not produced, and if the party required to produce him, or to prove his existence, has not proved to the satisfaction of the court that he is living, a final order must be made declaring tnat he is presumed to be dead for purpose of the proceeding, and directing that the petitioner be forthwith let into possession of the real property as if that person was actually dead.”

This title of the code is but a reproduction of the Revised Statutes on the same subject, with some added provisions as to the mode and manner of procedure. It is manifest that the statute applies only to a case where the prior estate is held by one who is a life tenant proper, in the legal and technical sense of that term. A tenant for life of estates is one to whom lands or tenaments are granted or devised, or to which he derives title by operation of law for the term of his own life, or the life of another. This will in terms does not give the devisee, Maria McLean, a life estate only. On the contrary she is given a contingent fee as the petitioner admits, but claims that the contingency has hapened upon which the fee was reduced to a life estate. ■ The petitioner is necessarily forced to maintain, as her learned counsel has argued before us, that the prior estate devised to McLean, although properly denominated a fee, because it might last forever, was, nevertheless, a base or determinable fee because it was hable to be defeated by the happening of the contingency upon which it was limited. In other words, that the estate devised to the first taker by the will was a determinable or qualified fee. Therefore, in a strict sense, Maria was never a life tenant of the premises. Assuming that she is now deceased, yet if, at the time of her death, she was in possession as owner of the fee, and if she in fact left children surving them, they would take an absolute fee as her heirs-at-law by the express' terms of the will, and this the petitioner admits.

The only fact which the court has the power to try and determine in these proceedings is, whether Maria McLean and John Lane are now dead or living. If it should be found that they are dead then it does not follow that the respondent should be required to surrender up the possesssion of the premises to the petitioner, for Maria may have left descendents, who would have a fee in the premises, a fact that this court has no jurisdiction to determine in this matter.

We purposely refrain from expressing any opinion as to the proper construction which should be given to the will of John McLean, beyond expressing the opinion, that Maria McLean, the first taker, was not a tenant for life of the premises in the sense in which the term is used in the statute, on which these proceeding are based.

. The order should be affirmed, with ten dollars costs and disbursements. Code, § 2316.

Smith, P. J., Haight and Bradley, JJ., concur.  