Buel v. . Southwick

Miller, J. The testator by his will gave, devised, and bequeathed to his son, Charles, the premises described in the complaint in this action, “ subject to the conditions and contingencies hereinafter mentioned.” .After making various other devises, he provided that all the said several gifts and devises before mentioned to his children,, who were named, “ are made, upon the express condition and subject to the conditions * * * that the gift and devise to each is made and given to each, and his, her, or their direct lineal descendants, should he, she, or they have any, in fee simple absolutely; but in the event that either of the said Charles, Julia, and William P. shall die, leaving no children or descendants of any children, then and in such case I hereby give, devise, and bequeath the said several gifts, devises, and bequests which belong to him, her, or them, to the children of the survivors or survivor of them, the said Charles, Julia C., and William P. equally, share and share alike; the direct lineal descendants, if any, of such of my said three children, Charles, Julia C., and William P. as may then be deceased to be entitled to the same share, which the child or children, so deceased, would have been entitled to if living.” *585 We concur with the opinion of the referee that these provisions, which must be construed in connection with each other, were intended to give to Charles Buel a contingent estate in fee, which was liable to be reduced to a life estate in case of his decease without children, or any descendants of children; and as Charles Buel died without any children, the estate devised to him terminated upon his death, and the title to the same passed to the children of Julia C. and William P. Buel, who are parties ¿n this action. By 1 R. S. (722, § 3), all estates tail are abolished, and every estate which would be adjudged a fee tail, according to the law of this State as it existed in 1782, shall thereafter be adjudged a fee simple, and if no valid remainder be limited therein, shall be deemed a fee simple absolute. By the next section (4), where a remainder is limited upon an estate which would be adjudged a fee tail, such remainder is valid as a contingent limitation upon a fee, and vests on the death of the first taker without issue. Under these provisions the devise in question contained a contingent limitation, and hence it was not an estate tail, and did not become a fee prior to the death of Charles Buel. The statute abolishing entails was intended, as is apparent, to except expressly from the effect of the law all estates where a valid remainder was limited, and as the devise in question to Charles Buel was made to depend upon certain conditions and contingencies which were named, it comes directly within the exception referred to. These conditions being connected with, and a part of the original devise to Charles Buel, and a qualification and restriction of its terms and effect, cannot, I think, be said to be antagonistic to or inconsistent with it. The authorities to which we have been referred from this state do not sustain the doctrine that where there is a limitation, as in this case, an estate in fee becomes vested in the first devisee, and the terms of the devise made in each of them are entirely different from the one now considered, and by no means analagous. The last remark will also apply to *586 the English cases which are cited, and in considering them it should be borne in mind that there is no statute in England abolishing estates tail, and making limitations as to contingent estates, as there is here. Considering the language of the first clause in the will, which has been cited, which expressly qualifies the estate devised and makes it subject to terms afterwards specified, and without laying down any general rule as to other cases, it is sufficient to say that the devise oyer was valid as a contingent, limitation upon the determination of the first estate. (1 R. S., 724, § 24.) There is no ground for claiming that the will must be construed to mean that, if either of the children die within the lifetime of the testator without children, then the children of the survivors were to take, and as they all survived, they took in fee simple. The authorities cited to sustain this position are not in point. (Livingston v. Livingston, 52 N. Y., 118; Embury v. Sheldon, 68 id., 227.) The power of alienation was not suspended by the devise, for a period of more than two lives, within the provisions, of the Revised Statute. (1 R. S., 723, §§ 14, 15.) Upon the death of Jesse Buel, aud by virtue of his will,. Charles became entitled to the estate, and when Charles died without child or descendant, and without having been the father of any child, the fee passed to the children of William P. and Julia C. Buel. If there had been no such children, and no descendants of the last-named persons, then the devise would have passed to the heirs-at-law of the testator. There was, therefore, no suspension of the power of alienation beyond the term of one life — that of Charles Buel. (Amory v. Lord, 9 N. Y., 416, 418.) Upon Charles’ death without issue, the estate passed to the children of his brother and sister; and if they had none, then to them as heirs-at-law of the testator and such other heirs as he left who then survived. It became vested in them, and was not open to let in after-born children. There is no force in the objection urged as to the conveyance made to Newland by the treasurer of Albany county *587 for the unpaid taxes; Newlantl, being a trustee, could not acquire any title on his own behalf adverse to that of the real parties in interest, and what he did get must enure to the benefit of the devisees under the will. There is no defect of title in this respect, nor is any other point made which requires discussion. As a good title could be given to the purchaser, he is bound to take a deed, and the order of the Special Term directing Jacob Leonard to complete the purchase should be affirmed. As the questions presented are not free from difficulty, neither party should have costs on this appeal. • All concur, except Folger, J., absent. Order affirmed.