Lauter v. Hirsch

Per Curiam. It is conceded th-at there is no property-which would justify the appointment of the receiver except [166] an interest under the will of the appellant’s deceased father, who died February 3, 1909, leaving a widow who- is still living, and six children. The residuary estate is left to the executors in trust for the widow during her life. The will then proceeds as follows: “ and upon her death, I direct that my said entire estate, or as much thereof as shall remain, be divided among all my children in equal shares, and should any of my children die, leaving issue surviving, such issue shall take the share the parent would have taken if living.” The case has been argued as if the question involved were whether the appellant had a vested or contingent interest in the property. This is a common but not strictly accurate use of words. Ever since the Revised Statutes, at least, all expectant estates have been alienable, whether vested or contingent. 1 R. S. 725, § 35; Real Prop. Law, 1896, § 49; id. 1909, § 11, Pers. Prop. Lal, 1897, '§ 2; id. 1909, § 11; Moore v. Littel, 41 N. Y. 66, 83, 86; Dodge v. Stevens, 105 id. 585, 588; Griffin v. Shepard, 124 id. 70; Roosa v. Harrington, 171 id. 341, 353. The real question is whether appellant has any present interest at all, whether vested or contingent. Upon this question we have the highest authority for saying that the cases are not at all in harmony. Connelly v. O’Brien, 166 N. Y. 406, 409. We incline to the opinion that they preponderate in favor of the position that he has no present interest. Matter of Crane, 164 N. Y. 71; Dougherty v. Thompson, 167 id. 472; Matter of Keogh, 47 Misc. Rep. 37; 112 App. Div. 414; 186 N. Y. 544. If this opinion is correct, he has no estate that is alienable, and, therefore, none that would pass to the receiver or trustee. Matter of Hoadley, 101 Fed. Rep. 233, and cases cited; Matter of Gardner, 106 id. 670. The testamentary provision under consideration in the latter case was closely similar to the one which we have here. Present: Seabury, Guy and Whitney, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.