
    Camp v. Cronkright et al.
    
    
      (Supreme Court, General Term, First Department.
    
    February 11, 1891.)
    Wills—Construction—Nature or Estate—Vested Rights.
    A testator devised to his wife certain property during “her natural life, and upon her death then I give and devise the same to my children, share and share alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his, her, or their parent would have taken if living. ” After testator’s death, but during the life-time of his widow, C., one of his five children, conveyed an undivided fifth interest in the premises, and his grantee conveyed the, same to defendant. Thereafter, and during the life-time of testator’s widow, C. died, leaving three children surviving him. Held, that the will vested an undivided fifth interest in remainder in the premises in C., subject, however, to be divested by his death in the life-time of his mother; that defendant’s title therein was subject to be divested by the same contingencies; and that upon the death of C. said fifth interest became vested in his surviving children.
    Case submitted on agreed statement.
    Submission of controversy without action on statement of facts agreed upon, by Hugh H. Camp against Charles Cronkright, Philip F. dwell, (individually and as executor of Philip Malone, deceased,) Patrick dwell, Bridget dwell, and Patrick Malone.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      F. L. Ford, (Stephen P. Nash and George F. Demurest, of counsel,) for plaintiff. William Stone, for defendants Cronkright and Philip F. dwell. Philip F. Olwell, for defendants Bridget and Patrick dwell. Chas A. Flammer, for defendant Malone.
   Van Brunt, P. J.

Charles M. Connolly died seised of certain premises, leaving him surviving Isabella S. Connolly, his widow, and the following children, his only heirs at law: James A. Connolly, Washington A. Connolly, Thomas B. Connolly, Charles M. Connolly, Jr., and Jane V. Chalfin, all of full age. He left a will bearing date the 26th of June, 1865, which was probated before the surrogate of the county of Hew York on the 2d of June, 1869, by which he devised the premises in question as follows: “Fifteenthly. I give and devise unto my beloved wife, Isabella S. Connolly, all the lands and grounds now occupied by me at Fort Washington. To have and to hold the same, with the tenements, hereditaments, and appurtenances, to her during the term of her natural life, and upon her death then I give and devise the same unto my children, share and share alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his, her, or their parent would have taken if living. ” By deed dated December 18, 1873, and duly recorded January 5, 1874, Washington A. Connolly, one of the children and heirs at law of Charles M. Connolly, deceased, and Louise I. Connolly, his wife, purported to convey to Thomas C. Ecclesine an undivided one-fifth interest in the premises in question in fee. Through various mesne conveyances the estate conveyed by said deed afterwards became vested in the defendant Charles Cronkright. Washington A. Connolly died in August, 1875, leaving him surviving his widow, Louise I. Connolly, and three children, Marie Louise Connolly, Washington'A. Connolly, and Bianca Connolly. In December, 1880, Isabella Si Connolly, the widow of said Charles M. Connolly, the testator, died. In December, 1885, the defendant Cronkright, claiming to be seised in fee of said one-fifth interest in said premises, commenced an action in the supreme court against Thomas B. Connolly for the partition of the'premises in question. The children of Washington A. Connolly, deceased, were not made parties. Such proceedings were had in said action that judgment was pronounced in favor of the plaintiff for partition, and directing the premises to.be sold by a referee. The referee sold the premises to the defendant Cronkright and Philip dwell, and conveyed the same to them by deed dated the 25th of January, 1886. Philip dwell died in March, 1889, leaving a will by which he appointed Philip L. Olwell executor thereof, which a valid power of sale over his real estate, including the premises in question. The questions submitted to the court upon this case are as follows: (1) Did the will of Charles M. Connolly vest in his son Washington A. Connolly an undivided fifth interest in fee in the premises in question, subject to be divested by the death of the said Washington A. Connolly in the life-time of his mother, Isabella S. Connolly? (2) Did the deed by Washington A. Connolly and wife to Thomas C. E. Ecclesine, dated December 18, 1873, vest any title in the grantee other than an estate in remainder, (subject to the life-estate of Isabella S. Connolly,) and subject to be divested by the death of said Washington A. Connolly before his mother, Isabella S. Connolly? (3) Upon the death of said Washington A. Connolly before his mother, did the title to an undivided one-fifth interest in the premises in question become vested in Marie Louise Connolly, Washington A. Connolly, and Bianca Connolly, only children and heirs at law of Washington A. Connolly, deceased, as devisees under the will of Charles M. Connolly,' deceased, subject to the life-estate of Isabella S. Connolly, widow of said Charles M. Connolly?

The question presented is not free from difficulty, but we think it was the plain intention of the testator to devise to his son Washington A. Connolly an undivided fifth interest in fee in the premises in'question, subject to be divested by his death in the life-time of his mother, the life-tenant. A large number of authorities have been cited upon both sides of this question; which do not seem to be entirely harmonious. But as in the construction Of every testamentary instrument the will of the testator must be adopted, it necessarily follows that it is seldom that any adjudication can'be found which is exactly parallel in its facts to the. ease being considered. So we find in many of the cases cited by the defendant that there are no limitations over in ease of death, as in the case-of Byrnes v. Stilwell, 103 N. Y. 456, 9 N. E. Rep. 241, where it was held that under a devise to A. for life, and from and immediately after the death of A. a devise unto the lawful child or children of A., his or her heirs, forever, each child named took an absolute fee, subject to be diminished by the birth of other children, as tenants in common. And in the ease of Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. Rep. 247, it was held that where there is a devise or bequest to one person, and in case of his death to another, the words referred to a death in the life-time of the testator. But in the case at bar there is a devise over in case of death; and that this devise over depends upon a death occurring during the life-time of the life-tenant is apparent from the language Of the will. The life-ten ant is to hold the prem. ises during the term of her natural life, and upon her death when the testator devises the same unto his children, share and share alike, absolutely, the child •or children of any deceased child to take the share which his, her, or their parent would have taken. How, it is apparent that the testator referred to the period of the death of the life-tenant in providing that in case of the decease of one of his children the child or children of such deceased child should take the share which his, her, or their parent would have taken if living. And the rule that in ordinary cases, where death is referred to, it means death during the life of the testator, cannot apply, because it seems to have been the intention of the testator to have this limitation extend down to the period of the death of the life-tenant. His words are: “Upon her death, then I give and devise the same to my children, share and share alike, absolutely and forever, the child or children of any deceased child to take the share which his, her, or their parent would have taken if living. ” It is the same as though the testator had said: “And upon her death I give and devise the same to my children then living, share and share alike, absolutely and forever, and to the child or children of any child of mine, who may then be dead, such child or children to take the share his, her, or their parent would have taken if living.” This was the intention of the testator, and he has expressed it in language reasonably clear, and which should not be perverted from its plain meaning in order to give effect to the rule in reference to the vesting of estates. Under these circumstances it could not be determined until the death of the life-tenant as to who should finally become vested with the fee of the premises in question. It follows from what has been said that the first question should be answered in the affirmative, the second in the negative, and the third in the affirmative, and that the plaintiff is entitled to judgment.

All concur.  