
    Frank B. Knowlton, Resp’t, v. Thomas J. Atkins, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Trust — Declaration op — Construction.
    Certain land being deeded to defendant by his brother, he executed a declaration of trust which stated that it was for the sale of the land for the best interest of the widow and children after the grantor’s death; the income to be divided between them equally; the trust could terminate when the youngest child came of age or at any time with the wife’s assent, the estate then to be conveyed to the children subject to the widow’s dower right. It also provided that in case of the death of both children before maturity the entire property was to be transferred to the widow. The widow died before the children, who both died under age. Held, that the widow at the time of her death left no estate, expectant or contingent, which survived her.
    Appeal from interlocutory judgment entered on report of referee.
    The action is brought by the plaintiff, as heir-at-law of two deceased nephews, children of the defendant’s deceased brother, Osmin W. Atkins, and of the plaintiff’s deceased sister, Cordelia Atkins: First, to compel a conveyance to him by the defendant of such portions of certain real estate in East Rew York, Kings county, which the defendant held in trust for Cordelia Atkins and her children as had not been sold and disposed of by the defendant pursuant to the power contained in a declaration of trust which he made as to the property; and secondly, for an accounting as to the proceeds of such portions of the said property as had been sold and conveyed by him.
    The facts appear fully in the opinion.
    The referee held that under the fifth clause of the declaration of trust the widow took an estate which vested in her and was descendible and devisable; that on her death the boys inherited the estate which she had and that this was the only estate which they could communicate by inheritance, the remainder of the estate descending to the heirs of the grantor, and that upon the death of the survivor of such children the estate inherited from the mother descended to plaintiff as his only maternal uncle. He thereupon found that plaintiff was entitled to judgment for the conveyance of an undivided three-fourths of the land unsold and an accounting for three-fourths of the proceeds of sales and income, less a proportionate part of expenses for taxes, etc.
    
      Howard St. Úlair Wait (TFT W. MacFarland, of counsel), for app’lt; S. A. & D. J. Noyes (James B. Ludlow, of counsel), for resp’t.
   Barnard, P. J.

Osmin W. Atkins, on the 7th day of September, 1871, conveyed a large landed estate to his brother, the defendant. The deed was absolute. The grantor had a wife and two very young children. The consideration expressed was $3,000, arid the wife of the grantor joined in the deed. In Rovember following, and after the death of Osmin W. Atkins, the defendant executed a declaration of trust in the land. In September, 1872, another declaration of trust was executed by defendant in respect to the same land. The declarations were substantially alike.

The trust was expressed to be for the sale of the land for the best interest of widow and children of grantor in the judgment of the trustee. One-third of the income was to go to the widow for life, and the remaining two-thirds to be equally divided between the two children of grantor. The trust was to terminate when the youngest child should be twenty-one, and then the estate was to be conveyed to the childrep, subject to the dower rights of grantor’s wife and the proceeds of land sold were to be paid over to the children after the widow’s claim therein was paid.

The declaration of trust contains this clause, out of which the controversy arises.

Fifth. In case of the death of both of my children before the age of maturity, then I am to convey all and every part of said property then remaining unsold and to pay over all income and proceeds of sales in my hands, deducting charges and expenses, to Cordelia for her sole use and benefit forever.

The widow died in 1878. The two children were both drowned in 1881, at the ages of ten and eleven years respectively.

The widow took no remainder in the estate which existed if she died before the children, and they died during their minority.

The scheme of the transaction was to create a title for the better management of th'e lands during the minority of the children.

One-third of the proceeds was to go to the widow, and the two-thirds was to be applied to the necessities of the children.

The trustees could, by the terms of the trust, terminate' the same with the wife’s assent, and convey the lands to the infants, “subject to the life use of said Cordelia, in one-third thereof.”

The trustees could, by the terms of the trust, pay a gross sum to the widow, and then convey to the children and to their heirs forever, equally.

■ By the terms of the deeds of trust, when the trust terminated by the limitation of the same, the conveyance was to be made to the children, “ subject to the dower, rights of the said Cordelia.”

The provision that the mother shall take in case of the death of both children during minority was not intended to create an estate in her, unless she survived the children; this contingency never happened.

If she had survived her children, the trust deeds would have carried the estate to her, and so would the statute of descents, without the deed.

In other words, the wife and children would be left as to the succession as if no deeds existed.

In Hennessy v. Patterson, 85 N. Y., 91, the gift over was of land to one John Fooley, if the testator’s daughter die without child or children. Fooley died before the daughter, and the laughter left no children at her death.

The court of appeals held that Fooley had a contingent renainder, which vested in him at the death of the testator and ¡vhich descended to his heirs.

The case is not an authority for the judgment appealed from, if the construction be held that no estate was created in the widow :xcept her dower rights, there was no contingent or expectant ¡state to be considered under the case of Hennessy v. Patterson.

The dower right of course would not be such an estate under he circumstances proven in the case. The law formed a construcion, which caused the land to descend in the course of ancestral ilood. Quinn v. Hardenbrook, 54 N. Y., 88; Wood v. Mitcham, 2 id., 375.

We conclude, therefore, that the widow, at the time of her death, left no estate expectant or contingent which survived her.

These views render unnecessary an examination into the evidence claimed to support a finding that one of the children survived the other.

The judgment should, therefore, be reversed, and a new trial granted at special term, costs to abide event.

Dykman and Pratt, JJ., concur.  