
    Edward Kilpatrick, Respondent, v. Mary E. Barron, Appellant.
    (Submitted January 27, 1891;
    decided February 24, 1891.)
    Under an ordinary contract of sale of real estate the vendor assumes the obligation to tender a marketable title and one free from all reasonable doubt.
    Where, therefore, the validity of a title tendered depended upon the construction of a will, and one question was as to whether descendants of children of the testator born after his death and prior to the time appointed for a sale, were entitled under the will; although the majority of the court were of the opinion that the title was good, yet, held, that as its judgment in support of the title would not bind such descendants, the title tendered did not meet the obligation assumed, and the purchaser was not bound to accept it.
    
      It seems that where, by a will, the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees during the intermediate period, the execution of the power may be accelerated by the consent of the executors and all the persons interested, they joining in the conveyance, provided they are sui juris and the conveyance is not in contravention of any trust and is consistent with the substantial purpose of the testator in creating the power.
    Reported below, 54 Him, 322.
    Appeal from order of the General Term of the Supreme Court in the first judicial department, made "November 7, 1889, which reversed a judgment in favor of' defendant entered upog a decision of the court on trial at Special Term.
    This action was brought to recover back moneys paid by plaintiff to defendant as part of the purchase-price of a house and lot contracted to be sold by the latter to the former. Plaintiff claimed there was a defect in the title offered by defendant.
    The premises in question formed part of the residuary estate of Thomas H. Geraty, deceased, and the questions discussed depended for their solution upon the construction to be given to certain provisions in the will.
    By the will certain trusts were created, with power to sell the real estate. The will directed the executors and trustees to suffer and permit the testator’s unmarried daughters to occupy his residence, during the lives of two of them named, so long as any of them should remain unmarried. One of the daughters remains unmarried. The defendant, as the sole surviving executrix and trustee, with the consent of all of the testator’s children, including the unmarried daughter, entered into the contract in question, and all of the children joined with the said executrix in the deed.
   The following is the opinion -in full:

The question whether a good title to the house and lot was tendered to the plaintiff, turns upon the true construction of the will of Thomas H. Geraty. If the six daughters of the testator took upon his death an absolute vested estate or interest in the house and lot or its proceeds, subject only to the right of the unmarried daughters until marriage to occupy the premises, but terminable on the death of the daughters Agnes K. and Ada H. Geraty, if that event should first occur, the title tendered would not, we think, be subject to reasonable doubt on the ground that the time of sale fixed by the will was anticipated. Although one of the daughters is still unmarried, and the two daughters upon whose lives the right of occupation was limited are still living, yet as all the children of the testator, including Josephine, the unmarried daughter, together with the executrix of the will of the deceased daughter Mrs. Fagan (acting under a valid power), have united in the conveyance, the case is clearly within the rule that where by the will the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees during the intermediate period, the execution of the power may be accelerated by the consent of the executors and all the persons interested, provided the persons interested and who join in the conveyance are sui juris, and the conveyance is not in contravention of any trust and is consistent with the substantial purpose of the testator in creating the power. (Perry on Trusts, § 783, and cases cited; Garvey v. McDevitt, 72 N. Y. 563; Hetzel v. Barber, 69 id. 1.)

“ The postponement of the execution of the power of sale in the present case was solely for the benefit of the unmarried daughters. All the daughters have married except one, and she has become a member of a religious order and will probably never marry, or desire to occupy the house.

Bnt the contention on behalf of the plaintiff is that by the true construction of the will the persons who are entitled to the proceeds of the sale of the house and lot, cannot be ascertained until the happening of one of the events upon which the power of sale was limited, viz.: the marriage of all the daughters or the death of the daughters Agnes K. and Ada H. The claim is that the. gift of the proceeds of the sale-directed is not to the six daughters of the testator, but to such of them as should survive the period of distribution, and in case of the death of one or more of them prior to that time,, to the then surviving daughters and to the descendants then living of any deceased daughters. If this construction is sound, then there can be no doubt, we think, that the title tendered to the plaintiff was insufficient, because it did not purport to-bind and in the nature of things could not bind the interests-of the children of the testator’s daughters, either born or who might come into being and be living and surviving the mother at the period appointed for the division.

The question whether a devise or legacy is vested or contingent, or if vested, whether it is subject, to be divested by an executory gift made to take effect in defeasance of a prior gift, often presents one of the most difficult and perplexing problems which can arise in the construction of wills. The legal rules which govern the subject are qualified by so many nice refinements and distinctions, and are so complicated with the question of the testator’s intention, to be drawn from obscure words or phrases, and as to which judges may and aften do differ, that one may well hesitate in very many cases as to his conclusion.

The construction of the will now before us is not an exception. The courts below have differed and the members of this court are not agreed upon the point involved. The general scheme of the testator is obvious, which was to vest his estate in his executors as trustees during the lives of his children respectively, in shares, and that the children should have the income of their shares respectively during life, the corpus on their death to go to their issue. It was his primary general purpose, that the descendants of his children should take the fee or absolute ownership of his property and that the parents should have an equitable life estate only. It seems to be conceded that the trust as to the house and lot was not, in view of section 56 of the statute of uses and trusts, lawfully constituted. But however this may be, is not material. If the trustees took the title the trust would terminate when the- purpose of the trust was accomplished, and if the trust was invalid, the title would vest in the heirs of the testator subject to the execution of the trust as a power.

<c The construction of the will insisted upon by the defendant imputes to the testator an intention to depart in respect to' the disposition of the house and lot, from his general scheme to give a life interest in liis property only to his children and the remainder to their issue. But it is to be observed that the share accruing by survivorship in his other property, in case of the death of any child without issue, accrues to the surviving children only, and not to them and the descendants of deceased children.

The plaintiffs construction of the will, as does that of the defendant, involves a departure from the general scheme, because under that construction the children surviving at the period of sale and division, would take their shares absolutely. The general contention of the counsel for the plaintiff has much support in rules applied by the courts in ascertaining whether a legacy or devise is present, absolute and vested, or is future, defeasible, or contingent. One of these rules is that where there is no gift, by a direction to pay and divide at a future time or on a given event, the vesting will be postponed until the .time appointed for the division or the happening of the specified event; unless a contrary intent can be collected from the whole will. (Williams on Exrs. vol. 2, pg. 1232).

And where legacies are given to a class, all are deemed to be comprehended who answer the description at the time the legacy is payable, so that where the legacy is payable at a future time, those who come into being intermediate the death of the testator and the time of payment, and answer the description, take as independent objects. (Teed v. Morton, 60 N. Y. 506. and cases cited.)

“ But none of these rules is conclusive. They yield to indications in the will of a different intention. The element of futurity may-have been inserted to let in some intermediate purpose of the testator in favor of other objects, and not for the purpose of postponing the vesting in interest of the legacies. The gift to a class may be so interpreted by the context as to be limited to those who constitute the class at the death of the testator, excluding those who may come into being intermediate the death of the testator and the time of the division. Clauses which might in some relations be interpreted as substitutional, may in the actual case be treated as words of limitation only.

Robert Wl Todd for appellant.

I). G. Grosby for respondent.

“ The true construction of the will in question is doubtful. I incline to the opinion that, taking all the circumstances into account, it was the intention of the testator that the proceeds of the house and lot should go to his children living at his death, and the descendants of children then deceased, and that the word “ descendants” in the clause, “and the proceeds therefrom be paid and divided to and among my children and their descendants,” was intended to designate the same descendants referred to in the previous paragraph of the will, viz., descendants of children who might die before him.

“ But our judgment here in support of the title tendered, would not bind the descendants of children who have been or may he born after the death of the testator, and prior to the time appointed for the sale and division. It would be then open for them to claim that they were entitled under the will as purchasers, either as primary or substituted legatees.

“ Under the principle in the case of Fleming v. Burnham (100 N. Y. 1), the title here tendered does not meet the obligation assumed by a vendor under an ordinary contract of sale, to tender a marketable title and one free from reasonable doubt.”

Andrews, J.,

reads for affirmance.

All concur.

Judgment affirmed.  