I agree with Hr. Justice O’Bbien that the interest of Mrs. Sclioeneman in the real estate in question at the time of the conveyance was dependent upon the precedent life estate in her mother; that by her death prior to her mother’s her interest ceased and her ■children took a vested estate in remainder under the will, and that this interest of Mrs. Sclioeneman was alienable though liable to be ■defeated by her death before the death of her mother. Although I am of opinion that the remainder was contingent upon her surviving her mother, the intention of the testator clearly being to postpone the vesting of the estate until the death of the life tenant, for by the will the direction was that after the death of her mother the whole of said property, both real and personal, was to be divided and paid over equally among the testator’s children then surviving, or the issue of any children, if any should die leaving issue, such issue to take the parent’s share. The estate granted, however, by either of the children of the testator during the lifetime of the mother would be dependent upon such child’s surviving his or her mother, and in case the child died before the mother no estate would pass under such a conveyance. Upon the death, therefore, of Mrs. Sclioeneman the undivided sixth interest in the estate vested in her children subject to the life estate of her mother; and the defendant Loeb, upon the happening of that contingency, was the owner in fee of but five-sixths of the real property described in the conveyance, the other one-sixth being vested in the children of Mrs. Schoeneman. As no estate vested in Mrs. Schoeneman, no estate passed by her deed to Loeb. Had she survived her mother, the remainder would then have vested, and under the covenant of warranty in the ■deed the fee of an undivided one-sixtli of the property of the testator would then have passed to Loeb; but such interest never having *159vested, no estate passed under the deed of the one undivided one-sixth devised to her upon the death of her mother.
It is quite apparent from a consideration of the deeds and the bond and mortgage that the parties to this transaction correctly appreciated the situation, understood the effect, upon Loeb’s title to the property, of the death of one or more of the children of the testator before that of their mother, and that the deed and bond and mortgage were prepared with a view of protecting Loeb on the happening of such a contingency. The deed which was executed and finally accepted by Loeb contained a covenant whereby the parties of the -first part (the grantors) did jointly and severally covenant and agree to and with the party of the second part, his heirs and assigns, that the said parties of the first part “ are lawfully seized in their own right of a good, absolute and indefeasible estate .of inheritance in fee simple, of and in all and singular the above-granted and described premises,” with a general covenant of warranty. There was a breach of this covenant of title at the time of the execution of the deed. Hone of the grantors had a good, absolute and indefeasible estate of inheritance in fee simple in the property. They had, however, an interest in the property which, upon the death of their mother, would become such an estate as they intended to convey, and under the covenant of warranty that estate would become vested in the grantee upon the death of the mother. This being the condition of the title, Loeb accepted the deed in question, paying a portion of the consideration for the property in cash and giving back a bond which was to become due upon the death of the mother, in whom the life interest was vested, secured by a mortgage upon the property conveyed. That bond ran to the children of the testator who had joined in .the deed jointly. There is no express provision in the bond as to the respective interests of the obligees, and it would be assumed, therefore, that they were entitled to share equally. That, however, was a mere inference drawn from the absence of an express or implied provision showing a .contrary intention as between the obligees themselves; and it seems to me that the question to be determined is whether or not the facts and circumstances surrounding the transaction show that such an intention existed as between the obligees. It is quite immaterial to the obligor just what dispo*160sition the obligees should make as between themselves of the amount that was due under the bond, and we have to determine whether or not there was an express understanding or agreement as between the obligees as to the disposition that was to be made of such amount due, or, in the absence of an express agreement, whether the law implies an agreement as to the disposition as between the obligees that should be made of the amount due under the bond. As before stated, the sole consideration for the giving of this bond was the execution of the deed by the six children of the testator which assumed to convey to Loeb the remainder of the property in question. The deed itself, when executed, conveyed no title to the premises. It did transfer whatever right the grantor had, and, upon the estate vesting in them on the death of the mother, it would, by estoppel, vest a valid title to the premises in the grantee provided the children of the testator survived their mother. If all the children of the testator had died before their mother, no title at all would then have vested in the grantee, and the consideration for the bond would have wholly failed. By the death of Mrs. Schoeneman, an undivided one-sixtli interest in the property vested in her children upon the death of the life tenant, and by an express provision of the bond the obligor became entitled to acquire the undivided one-sixtli interest that became vested in Mrs. Schoeneman’s children, and to deduct from the amount due upon the bond the amount necessarily expended by him in acquiring such interest. The effect of this provision would, it seems to me, indicate an intention on the part of the obligees that the obligee whose title failed and whose conveyance furnished no consideration should not share in the amount due under the bond, especially as it appears that, by the breach of a several covenant in the deed, the obligee whose title failed, or her estate, became liable to the obligor for the damages sustained in consequence of a breach of the covenant of title. The situation that existed upon the death of Mrs. Schoeneman before her mother was that her estate was liable to Loeb for the damages that he had sustained in consequence of a breach of her covenant of title. It is conceded by all the parties that those damages consisted of the amount that he was compelled to pay to acquire the title of her children to the undivided one-sixtli of the property which she had assumed to convey to him. Under the provision of the bond, he *161had acquired that interest by purchase from her children, and was entitled to deduct the amount that he had paid to acquire such title from the amount due upon the bond, and the bond was correspondingly reduced. Thus his claim against the estate of Mrs. Schoeneman was satisfied by deducting from the amount due upon the bond the amount which, under the bond, she would have been entitled to receive, and, in addition thereto, an amount equal to one-fourth from the share that each of the other obligees would be entitled to receive. That amount Loeb paid and deducted from the amount that otherwise he would have had to pay to each of these obligees; and it seems to me quite clear that each one of the obligees became subrogated by such payment, which Loeb enforced in pursuance of an agreement that was binding upon Mrs. Schoeneman, to the right to enforce the covenant made by Mrs. Schoeneman that she had a good and indefeasible title in fee simple to the premises in question. That right to enforce such covenant, having passed by subrogation to the obligees in the bond to the extent of their interests in the bond, entitled them to claim from the estate of Mrs. Schoeneman the greater amount that each of them would have been entitled to receive from Loeb in the event that Mrs. Schoeneman had outlived her mother, and thus her conveyance to Loeb would have become operative.
hfo case exactly in point has been cited to us, but it seems that the principle established in the case of Pease v. Egan (131 N. Y. 272) applies. There, a testator had left certain real estate to his wife for life, with the remainder to his children upon the youngest child attaining the age of twenty-one years. That real estate was subject to a mortgage. He also left certain personal estate to which the children would become entitled absolutely upon the death of their mother. The widow in order to protect the real estate paid the mortgage out of this personal estate, causing the same to be satisfied of record. One of the children died before the youngest child arrived at the age of twenty-one, and the question was whether or not this mortgage upon the real estate passed by way of subrogation to the representatives of the deceased child so as to entitle them to enforce the lien of the mortgage against the real estate. The court said: “ The daughter in fact has discharged a debt against another, and in the discharge did not act as a mere volunteer. This *162gives a right of subrogation. The fact that, if she had had an absolute interest in the property as devisee, she would have been bound to ■pay the mortgage to the exoneration of the testator’s personal estate, does not make the mortgage debt her own. Whether she had any interest in its payment was based upon whether she was a devisee of the realty, and that was based upon a contingency which had not yet occurred, and when she paid the mortgage or some part thereof, .she took the chance of paying a debt • for which she was not responsible in order to preserve an estate, her interest in which was contingent. When the contingency subsequently occurred which proved that she had no interest in the property which she had aided in preserving, justice demanded that her estate which had thus suffered should be treated as if it had paid the debt of another.” It seems to me that this condition exists in this case. These four ■surviving obligees of this bond have paid a portion of the debt of Mrs. Schoeneman’s which was due to Loeb by virtue of the breach of her covenant of title in the conveyance in question. That was not a voluntary payment, but was a payment deducted by Loeb •from the amount due to these obligees under the provisions of the .bond which were binding upon Mrs. Schoeneman. ■ Thereby these four obligees became subrogated to the claim that Loeb had as against Mrs. Schoeneman to enforce the breach of her covenant of title, and thus became entitled' to compel Mrs. Schoeneman’s children to make good to them the loss which they had sustained in consequence of Loeb’s enforcing the agreement to repay to him the amount due him from Mrs. Schoeneman in consequence of the breach of her covenant of title.
I think, therefore, that the judgment was right and it should be affirmed, with costs.
Van Brunt, P. J., Williams and Patterson, JJ., concurred; O’Brien, J., dissented.