
    Caleb B. Knevals, Pl’ff, v. Charlotte C. Henry and L. Bradford Prince, Def’ts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Vendor and purchaser — Title—Will.
    The will of a testatrix directed that her real estate be divided into two equal shares, one of which she devised in fee to her son and the other to her daughter for life, with remainder to her children, in such shares as she may direct, and declared the intention to be that the shares of her daughter should be kept intact for her children. The executors, who were said son and daughter, made partition of the property, the premises-in question being set apart to the son. Reid, that the expression that “the-same shall be kept intact” applied only to the share of the daughter; that the fee of the premises in question was in the son, and that he could convey a good title with a release from the children of the daughter, it being conceded that no other children will be born.
    Submission of controversy without action.
    Plaintiff contracted to purchase from defendants twenty-nine-lots of land in the village of Flushing, defendants agreeing to-convey the same, in fee simple, free from liens or incumbrances, by deed with full covenants.
    The premises in question formed part of the estate of the defendant’s mother, who died in 1888, leaving a will by which she directed that all of her real estate should be divided into two-equal shares or portions, one of which said two equal parts she gave to her said son, L. Bradford Prince, in fee, and the other-equal half or portion she gave to her said daughter, Charlotte C, Henry, to be held, owned and enjoyed by her free from the control of her husband during her natural life, and upon the death of her said daughter she gave this second share or portion to the children of her said daughter, in such shares or proportions a$ she, her said daughter, might direct, and to their heirs and assigns forever. Said will provides “ that the portion of my real estate-given to my daughter (Mrs. Henry) shall be used and enjoyed by her during her lifetime, but that the same shall be kept intact for her children, and shall be left to and divided between and among-them in such manner as she may determine and direct, and to-their heirs and assigns forever.”
    On or about t'he 31st day of October, 1889, the defendants, as the executors of Mrs. Prince’s will, made a division of the estate of which Mrs. Prince died seized, into two equal parts, and allotted the twenty-nine lots in question to the defendant L. Bradford Prince. In this voluntary partition the children of Mrs. Henry, all of 'whom are of full age, did not join, but are willing to execute any deeds to, as far as they lawfully can, confirm said partition and make the same firm and effectual.
    Defendants offered a full covenant deed, in which the children-of Mrs. Henry offer to join, but plaintiff refused to accept, claiming that the title is defective on the grounds, 1st, that the executors could not make a division, but this could only be done by decree of the court, and 2nd, that the vesting of the remainder in the children of Mrs. Henry was dependent on the contingency of their surviving her, and that in the event of any of them dying in her lifetime, a deed executed by them would be worthless and would not conclude their heirs.
    
      Knevals & Perry {Jas. W. Perry, of counsel), for pl’ff; Calvin D. Van Name, for def’ts.
   Pratt, J.

It is expressly conceded that no other children will be born to Mrs. Henry; therefore, any question that might arise from the happening of such an event is eliminated from inquiry.

There is nothing in the will of Mrs. Prince to indicate that she did hot intend L. Bradford Prince to have the benefit of the devise to him until after the death of Charlotte. On the other hand,, the intent is plain that she desired the real estate to be divided immediately after her death,(and such division has been had and is satisfactory to all parties interested, and must be regarded as binding, especially after the children of Mrs. Henry all join in a conveyance.

The expression in the will, “That the same shall be kept intact ” applies only to the share of Mrs. Henry.

It follows that the fee of the twenty-nine lots in question is vested in L. B. Prince, and he can convey a good title thereto, with a release from Mrs. Henry and all her children. It is true that each of the children have an interest in the real estate left by Mrs. Prince, and the same has not been specifically determined, but they all offer to release "whatever interest or right they have or may have under the will, and such a conveyance, if good upon no other ground, would operate as an estoppel in case such release shall be drawn in form as a warranty for the twenty-nine lots in question.

But, irrespective of these questions, we think the division of the real estate was effectual, and that the plaintiff will obtain a good title.

Dykman, J., concurs.  