Paget v. . Melcher

Haight, J. This action was brought for the partition of real property and for a division of certain personal property which Paran Stevens had bequeathed to his wife for life. With reference to the real estate sought to be partitioned, it appears that it was conveyed on the 29th day of April, 1863, by Paran Stevens to Charles G. Stevens, upon the trust, however, that Charles was to receive the rents and profits, and, after • paying the taxes and repairs, “ tó pay over the balance to Marietta Stevens, wife of the said Paran Stevens, during her life, * * * and upon the death of the said Marietta Stevens, during the life of the said Paran Stevens, to pay over" *404 the balance of income thereof to the said Paran during his life, and upon, the death of the survivor of said Paran Stevens and Marietta Stevens, to convey the said lands and premises to the children of said Paran Stevens in fee, the issue of any child of said Paran who shall have died leaving issue living at the death of the survivor of the said Paran and Marietta, to take the same share that the parent would, if living, and in default of issue of the said Paran living at the time of decease of the survivor of the said Paran and Marietta, then to convey the same to the heirs at law of the said Paran Stevens.” Paran Stevens died on the 25th day of April, 1872, leaving-him surviving his widow, Marietta' Stevens, and three children, Ellen S. Melcher, the wife of John L. Melcher, Mary Fiske Stevens, who afterward intermarried with Arthur II. F. Paget, and is known in this action as Mary Paget, and Henry Leiden Stevens, who died on the 18th day of July, 1885, unmarried and leaving no issue, but leaving a last will and testament in which he disposed of all his real and personal estate. Marietta Stevens departed this life on the 3d day of April, 1895. The first question presented for our determination is as follows : “ Upon the death of the widow, (Marietta Stevens) did the devisees of the son (Henry Leiden Stevens) take an undivided third part of the said real property ? ” In answering this question we shall not attempt an extended review of the authorities. Yery much has been written upon the subject, and we have quite recently, in several cases, discussed the legal propositions involved. (Townshend v. Frommer, 125 N. Y. 446; Campbell v. Stokes, 142 N. Y. 23; Matter of Baer, 147 N. Y. 348; Matter of Brown, 154 N. Y. 313; Matter of Young, 145 N. Y. 535; McGillis v. McGillis, 154 N. Y. 532; Hersee v. Simpson, 154 N. Y. 496.) The opinion below delivered by Eumsey, J. (26 App. Div. 15) is in accord with our views, and we shall only supplement it with an additional point. The contention on one side is that under the deed of trust the children of Paran Stevens took a vested remainder. On *405 the -other side, it is claimed that the future estate was contingent. Under the Be vised Statutes “ future estates are either-vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain.” (1 B. S. 723, § 13.) If the estate is vested it is descendible, devisable and alienable in the same manner as an estate in possession. (1 B. S. 725, § 35.) Upon referring to the deed it will be observed that there is no provision in which the estate is granted to the children of Paran Stevens. It only contains a direction to the trustee to convey the premises to the children or their descendants, upon the termination of the lives of the persons for whose benefit the trust was created. Upon the happening of that event, the trustee is directed to convey the premises to the children in fee, the issue of any child who shall have died leaving issue at the death of the survivor of Paran and Marietta, to take the same share the parent would, if living. Had the provisions of the deed stopped at this point, there might possibly be found some ground for the contention that a vested remainder was intended, notwithstanding the absence of a provision expressly granting the estate to the children; but that which follows we regard as decisive against that contention, “ and in default of issue of the said Paran living at the time of decease of the survivor of the said. Paran and Marietta, then to convey the same to the heirs at law of the said Paran Stevens.” Here we have an express provision in the deed disposing of the fee to the heirs at law of Paran Stevens, in case none of his children or of their issue survive himself and his wife. If each of his children took a vested remainder in one-third of the real estate, as it is contended, then such' estate would have been descendible and devisable, and, upon the death of a child, it would pass under his will, or, in default thereof, descend to his heirs at law. It could not pass to the heirs at law of Paran Stevens. We, consequently, con- *406 elude that the provisions of the deed directing the trustee to convey to the heirs at law of Paran Stevens, in case none of his children or of their issue survive, of necessity, indicate that it was not intended that the children should take a vested remainder. It follows that their estates were contingent. Henry Leiden having died during the pendency of the trust, leaving no issue him surviving, no interest in the real estate in question passed under his will or descended to his heirs at law, and upon the death of Mrs. Stevens the entire real estate passed to the surviving daughters. Paran Stevens died leaving a last will and testament, which has been proved and admitted to probate. In it he gave and bequeathed to his wife during her natural life the use of a large quantity of personal property which he specifically described, and then provided “ upon the decease of my said wife the property, by this and the preceding clause devised, shall belong to my children, the descendants of any deceased child to take the share their parent would have taken if living, and if no descendants of mine survive my said wife, then said property shall belong and be delivered over by my executors to the same persons named as residuary legatees in case of such failure of descendants in the next clause of this will and in the same proportion.” The same contention is made with reference to the construction of this clause that was made with reference to the provisions of the deed. The question certified is as follows : “ Upon the death of the widow did the personal representatives of the son take an undivided third part of the personal property bequeathed by the third and fourth clauses of the will of Paran Stevens ? ” It is claimed that one-third of this property vested in Henry Leiden Stevens, and that it, upon his death, passed under his will to liis personal representatives. We, however, are of the opinion that this construction cannot be sustained. If it belonged to the children of Paran Stevens, subject only to the life use of their mother, or, if their interest in the estate had. vested, then upon their death it would go to their legatees, or ■ in default of a will to their next of kin. It could not possibly *407 go to the residuary legatees named in the will of their father. It is, therefore, apparent that the concluding clause of the will of the father providing that if no descendants of his survive his wife the property shall belong and be delivered over by his executors to the persons named by him of necessity shows that he did not intend that his children should have such a vested interest in the property during the lifetime of his wife as to make it pass under their wills or go to their next of kin. We, therefore, conclude that none of this property passed under the will of Henry Leiden Stevens, but that, upon the death of Mrs. Stevens, it passed to the surviving daughters of the testator in equal shares. The judgment of the Appellate Division, so far as it reverses and modifies the judgment of the Special Term, should be reversed and that of the Special Term affirmed and the questions certified answered in the negative, with costs of this appeal to abide the final award of costs upon the application for final judgment herein. All concur (Bartlett, J., in result). Judgment accordingly.