McLoughlin v. Maher

Gilbert, J.: By the sixth clause of the will an absolute estate in fee was devised to Mrs. De Forest. By the eighth clause that estate was changed into a fee with a contingent limitation over, whereby the estate was devised to the brothers of Mrs. De Forest on her death Avithout issue. (1 R. S., 725, § 27.) It is probable that the testator referred to the death of Mrs. De Forest in his own life-time. (Kelly v. Kelly, 61 N. Y., 47; Livingston v. Greene, 52 id., 118.) But if he did not, the eighth clause is not repugnant to the sixth. (Norris v. Beyea, 13 N. Y., 273, Gilman v. Reddingion, 24 id., 10; Guernsey v. Guernsey, 36 id., 267.) ItAVOuldbe a perversion of the manifest intention of the testator to convert his gifts to his children into a life estate to his daughter with remainder to her brothers, for by the words of the will the gift over of Mrs. De Forest’s share could take effect only in the event of her demise without issue. If she left issue the fee devised to her would descend to such issue. To construe the avíII as vesting her with a life estate only Avould necessarily impute to the testator the intention to disinherit her children for the benefit of her brothers, to Avhom he had by the same Avill given an equal share of his estate. Such a construction would be Avholly unwarranted. But the only effect of changing the estate of Mrs. De Forest into one for life Avould be to make the brothers remaindermen instead of executory devisees. The estates under the will Avould then be a fife estate in Mrs. De Forest, and a remainder in her brothers. The children of Mrs. De Forest could in no event take any estate under the will in the lands devised to their mother. It is not disputed that Mrs. De Forest and her brothers have conveyed the lands in controversy, and that the estate so conveyed has become vested in the defendant. If the will gave a fee to Mrs. De Forest that has passed to the defendant. If it gave to her a fife estate, and either a remainder or a future expectant estate to her brothers, the defendant has acquired all of the estates so devised. For an expectant estate is devisable in the same manner as an estate in possession. (1 R. S., 725, § 35.) In every point of view, we think that a good title has been tendered to the defendant, and that he should be compelled to com [218] píete His purchase. (Freeborn v. Wagner, 49 Barb., 43; S. C., 4 Keyes, 27.) Judgment accordingly, with costs. Dykman, J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ. Judgment for plaintiff on submitted case, with costs.