Schwartz v. Rehfuss

Rich, J.: It appears that Herman Dale died on the 8th day of November, 1905, seized in fee of a certain piece or parcel of real property situate in the borough of Brooklyn, N. Y., leaving a widow, Sophia Dale, and four children, Aldrich J. Dale, Charles H. Dale, Emma Y. Leimdorfer and Elvina F. Diamond, his only heirs at law and next of kin. He left a last will and testament, which has been duly admitted to probate, paragraphs 3 and 4 of which are the only ones material to this controversy, and are as follows : “ Third. All the rest, residue and remainder of my estate, real and personal, and wheresoever situated, I give, devise and bequeath to my wife Sophia Dale for and during her natural life. “ Fourth. At the death of my said wife Sophia Dale, I give, devise and bequeath all my' property, real and personal, and wheresoever situated, to my children Emma Y. Leimdorfer, Aldrich J. Dale, Elvina F. Dale and Charles II. Dale, share and share alike, To Have and To Hold the same to them and their heirs and assigns forever, and in case any of my said children shall have died leaving issue, the share of the child so dying shall descend to and vest in his or her issue, and in case of the death of any child without leaving issue, his or her share shall descend to and vest in his or her surviving brothers and sisters.” On the 28th day of March, 1907, the widow and the four children conveyed the said premises to Aaron Potruch, who thereafter [632] executed a mortgage thereon to the plaintiff, which was subsequently duly foreclosed and purchased by her upon the foreclosure sale. The plaintiff thereafter entered into a written agreement with the defendant whereby she agreed to sell, and the defendant agreed to purchase, said premises. At the time fixed for closing the title the widow, Sophia Dale, was still living, and the defendant refused to take the title tendered, and to perform the contract, on the ground that plaintiff did not have a good title to the land contracted to be conveyed, for the reason that under the 4th clause of the will of Herman Dale the interest of his children in the real estate was subject to being divested by their deaths prior to that of his wife, Sophia Dale, and that until the happening of the latter event it could not be determined who were the proper parties to convey good title to the premises. The intention of the testator is expressed in language so clear that but one interpretation is possible; and as we are to give effect to this intent our duty is clear. By the 4th paragraph the testator in giving his residuary estate to his four children intended to provide that in case any of his children should die before the decease of his wife, Sophia Dale, leaving issue, the share of the child so dying “ shall descend to and vest in his or her issue.” Upon his death the real estate in question vested in the children, subject to their being divested by their not surviving the life tenant. Potruch took no greater interest in the premises than his grantors had power to convey, and it was, therefore, liable to be divested by this contingency. The title of Annie Schwartz under the foreclosure was no better than that obtained by Potruch, and it follows that the plaintiff was unable to give a good title to the property, and judgment may be entered in favor of the defendant in accordance with the terms of the stipulation. (See Lyons v. Ostrander, 167 N. Y. 135; Flanagan v. Staples, 28 App. Div. 319.) Woodward and Miller, JJ., concurred; Gayror, J., read for judgment for the plaintiff, with whom Jerks, J., concurred.