- ■ The action was brought for the specific performance of a contract to convey real estate. The agréement.was for an exchange of property, the defendant agreeing to convey certain property upon East Twelfth street in the. city of New York, to the plaintiff for thé sum of $75,000, payable part in cash, part by assuming a mortgage upon the. premises to be conveyed, part by transferring a second mortgage on other premises inEast Twelfth street, and $20,000 by conveying a house and lot of land on Seventh street in the city óf New York. The complaint alleges that the plaintiff tendered a deed conveying the property in Seventh .street provided for in the contract, and tendered a compliance with the conditions of the contract upon his part, but that the defendant was unable to carry out and complete the contract, for the reason that he was unable to" convey the premises in East Twelfth street so as to transfer a marketable title thereto. The defendant, answering the complaint, alleges that he was able and willing to convey the premises in Twelfth street, and to give to the plaintiff a marketable title; that he .tendered such a conveyance, but that the plaintiff.was unable to carry out and complete the contract, for the reason- that he was and still is unable to give and transfer a marketable title to the Seventh street property, and demands an affirmative judgment against the plaintiff for $4,200 and interest. Upon the trial of the action at Special Term the court held that the defendant’s title to the Twelfth street prop*201erty was good, but that the plaintiff’s title to the Seventh street property was not a marketable title, and directed judgment for the defendant, with costs. From that judgment the plaintiff appeals.
To sustain this judgment it is necessary for the court to find that the defendant’s title to the Twelfth street property was a marketable title and that the plaintiff’s title to the Seventh street property was not marketable. The objection to the defendant’s title to the Twelfth street property is based entirely upon the fact that the devise of the.residuary estate of one Helen S. Folsom to a corporation known as the “ St. John the Baptist Foundation ” was void or voidable. It seems that the property in question, with considerable other property, both real and personal, was owned by Helen S. Folsom, who died in the'year 1882, leaving a last will and testament; by which, after certain specific legacies, she gave all the rest of her estate, both real and personal, to said corporation for the general purposes of said corporation. This will was admitted to probate on June 26, 1882, and the objection to the title acquired by the corporation by this devise and bequest was that such property was of the value of at least $243,000, and that such corporation was not authorized to take property, real or. personal, by devise or bequest, to a greater value than $150,000, or more than was' required to clear an annual income of $10,000; and as this property exceeded that gross value, and the clear annual income thereof exceeded the sum of $10,000, this corporation had no power to take the property devised by Miss Folsom; that the devise in question was a nullity and did not operate to divest the testator of the title to the property ; that the property did not pass under such devise, but that it passed to the testator’s heirs at law. This coiqioration, the “St; John the Baptist Foundation,” seems to have been organized under chapter 319 of the Laws of 1848. A corporation organized under this statute, as originally passed, was authorized to take, receive, purchase and to hold real estate for the purposes of its incorporation to an amount not exceeding $50,000, and personal property to an amount not exceeding $75,000, but the clear annual income of such real and personal estate was not to exceed $10,000. By section 6 of the act it was provided that any corporation formed under the act should be capable of taking, 'holding or receiving any *202property, real or personal, by virtue of any devise or bequest contained" in any last will or testament of any person whatsoever, the clear annual income, of which devise or bequest should not exceed the sum of $10,000. By. chapter 641 of the Laws of 1881 the restriction as to the taking, receiving, purchasing and holding real and personal estáte was modified so that any corporation organized under the act of 1848 shall, “ in. law, be capable of .taking, receiving, purchasing and holding real estate for the purposes of their corporation to an amount not exceeding the sum. of two hundred thousand- dollars in value, and personal estate for like purposes to an amount not exceeding the sum of two hundred thousand dollars in value, but the-clear annual income of such real and personal estate shall not exceed the sum of fifty thousand dollars, subject, however,' to the restrictions upon devises and bequests contained in an Act entitled ‘ An act relating to wills,’ passed April thirteen, eighteen hundred and sixty.” ' This last act relating to wills is chapter 360 of the Laws of 1860, .and "prohibits, -a. person.' having a husband, wife, child or parent from devising or bequeathing to any benevolent or charitable corporation more than one-half part of his or her estate. .
This corporation had the right to take by will real estate not exceeding the value of $200,000, and personal estate not exceeding the sum of $200,000 in value, provided that the clear annual income of such real and personal property did not exceed the sum of $50,000... That this authorization was intended to- apply to a devise or bequest of property by will, as well as to a conveyance or transfer. by deed or gift, is clear from the fact that the only limitation upon the right of the corporation to take, receive, purchase or hold is the restriction contained in the act of 1860, which applies only to wills. There is no evidence-to show, nor is it claimed by the appellant, that this corporation, prior to the time of the probate" of the will of Miss Folsom, owned property in excess of the amount which it was authorized to take or hold by virtue, of any last will -and testament. . The appellant claims, however, that the property devised and bequeathed by said will-.of Miss Folsom was, with other prop^ erty held by the corporation, in excess of the amount which the corporation was au-thoriz'ed to take, receive.or hold. The evidence is not at all clear that .this real estate was worth , more than $200,000) *203cCr that the personal property bequeathed by the will was of a greater value than $200,000, or that the clear annual income of all of the real or personal estate owned .by the corporation, after the receipt by it of the devise and bequest contained in the will, would exceed $50,000; but assuming that such an excess did exist, including the property received under Miss Folsom’s will, that fact would not render the devise or bequest void. •
It was held in Matter of McGraw (111 N. Y. 130) that where a corporation had property in excess of the amount that it was allowed by its charter to receive or hold, a devise or bequest of either real or personal property to such corporation was void, and any property attempted to be devised or bequeathed to such a corporation passed to the next of kin of the testator as property undisposed of by the will. That decision, however, related solely to a case where, at the time of the death of the testator, the devisee or legatee was limited by its charter as to the amount of real or personal property that it could take and hold, and it already held property in excess of the amount to which it was so limited.
The ease of Chamberlain v. Chamberlain (43 N. Y. 431) was a case where a corporation had a right to take and hold property, and where the limit of the property that it might so take and hold had not been reached, but the bequest or devise contained in the will in question vested in the corporation property which, with that before owned by the corporation, exceeded in the aggregate the amount that it was authorized to take and hold. In that case it was held that the corporation could take under the devise or bequest property to the amount to which it was limited, but that it could not take in excess of that amount. The whole devise or bequest, however, was not void. It was void only so far as it vested the corporation with property in excess of the amount that it was authorized by its charter to receive and hold. The title to the property thus vesting in the corporation, subject to a portion of it being divested if it appeared that its value exceeded that which it was authorized to take, a conveyance by the corporation of a portion of- the property would vest a good title in the purchaser, where the consideration received for such transfer, with the other property owned by the corporation prior to the receipt of the bequest of devise contained in the will in question, would not exceed the amount that the *204corporation was entitled to • take and hold under the terms of its charter.. The right of the heir- at law or -next of kin of the testator would-then clearly be limited to a recovery of the;property remaim, ing undisposed of'by the corporation to am amount equal'to the excess- of that which it was authorized to take and hold, by its charter Where the devise or bequest was not void as'a whole,.but. only voidr able as to a portion which would be "in excess: of what the corpora# tiorn could take, it would seem to be clear that the tifié- to the real property constituting the devise vested in the devisee;. and’ its, com veyance of a portion of the property would convey a good title so long as-such. property so conveyed, together.with the property:owried by the corporation prior tb the" time of the taking effect of the will, did. not exceed the amount that the corporation was ' authorized by its charter to receive and take. As"thére\is not the slightest' -evi-; dence to show that this- corporation was not authorized to take and hold property to- the value, of that conveyed to the defendant, including all property received under Miss Folsom’s will which it" had conveyed or .disposed of prior to that time, in addition to what it. owned at'.the .time that the will was • admitted, to-probate, there would seem to be no-doubt but that a.good title vested in the gram: tee of the corporation, and" .that the court below, was correct in hold-' ing that the defendant’s title.- to ■ the. Twelfth .street property was: good. ' ’ ■ . . " ■
The court below also found that the title téndered .by the plaintiff1 -o.f the-Seventh street.property was not marketable.:. , .:
■ There is one objection to the title of. the plaintiff .to the Seventh street property ■ which, we .-think, justifies, the defendant in, refusing to complete the contract, as we think, upon the evidence before the court, it cannot be said to be. a markétable .title. .The plaintiff’s title-, to this property ’ came ..through a conveyance of . the devisees and' heirs at law of one Catherine Donaldson, the .owner of this Seventh, street property at the time-of her death. She died. May 14, 1866, leaving -a last will and testament dated July T9, 1848, .which was ■ admitted- to probate on .July 16, 1866. ■ By that will, after directing the payment of her debt's and dividing her. household" furniture-: between her daughters, she directs her executors to invest and place-■ at interest the stim of $2,000 upon bond.and.mortgage.upon pro"-■ductive.real estate, arid to apply the interest thereof to the use qf her'-. *205grandson James D. Dusenbury for and during his natural life, with remainder over. She disposes of the residue of her estate as follows : “ All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath unto my children William P. Donaldson and Anna Maria Burritt, Adeline. Lewis, Eliza Jane Mount, Cornelia M. -Lewis and Catherine Louise Slipper, share and share alike, to have and to hold the same to them, their heirs and assigns.” It seems that two of her children named in this devise and bequest, viz., William P. Donaldson and Eliza Jane Mount, died without leaving issue during the lifetime of the testatrix. It also appeared that another daughter, who died before the will of her mother was made, had been married to one Dusenbury, and the issue of that marriage was a son, whose name was James D. Dusenbury. It appears from the petition presented upon the probate of this will, made by William E. Lewis, an executor, who was also her son-in-law, which was verified May 22, 1866, that James D.-Dusenbury was - one of the heirs and next of kin of the testatrix, but that his residence, after diligent search and inquiry, could not be ascertained; that said James D. Dusenbury was one of the children of a deceased child of the testatrix. On the trial there was evidence of one William H. H. Mohr, who married one of the granddaughters of the testatrix, the daughter of Cornelia M. Lewis, in the year 1862, before the death of the testatrix. He testified that this James D. Dusenbury was a first cousin of his wife, and that the last heard of him was some fifty years before the trial; that the witness had never seen him; that he had been away a long time before he (witness) had any knowledge- of the family. He testified that he made inquiries as to Dusenbury at the time of the death of the testatrix; that the last that was heard of him was that he was at Horseheads, a place in Chemung county, Hew York¿ about twenty years prior to Mrs. Donaldson’s death. They had knowledge of him up to that time, since which the family have heard nothing from him or of him. The witness further testified that nothing to his knowledge had been heard of James D. Dusenbury by the family since the -death of his grandmother. The witness said that he had never heard whether he was married or not, and that he (witness) was in communication with all' the other known living members of- the family. It further appeared .that a. search had . been made for Dusenbury some time *206before when the plaintiff acquired title to- this property, but no inquiry appears ever to-. have been made, at Horseheads, whereDusenbury was last heard of, and the only inquiry that seems to. have been made-was by writing to some, members of the family in Indiana and at Hartford* Conn., from whom no information could be obtained: ~
It is claimed by the plaintiff that this devise,, contained in the will of Cornelia Donaldson, was to a class, and that thus, upon the death: Of 'the two children named in the willy it went to the -remaint ing members of the class, and no part of the estate of the testatrix lapsed or vested in the heirs at law.. . .
The- rule is. well settled that when the devise creates-a tenancy in common, the gift being to several persons by name, the share of the one dying before the testator lapses, ¡and vests in the- heirs- at lawi (Downing v. Marshall, 23 N. Y. 366.) The. question resolves itself into one of the intention of the testator to be considered from the whole will, and any facts ’-proved as to the- family of the testator at. the time of the making of the will or.the death of the testatorand it is but necessary to cite. one or two of the-casesuupon the subject;
In the -case of Hoppock v. Tucker (59 N. Y. 202), relied on by the plaintiff, the testator divided his residuary estate- into six parts, one of which was given in equal proportions, ahare and share alike, unto John 0. Tucker, Hubert Tucker and William E,. Tucker, the, children of his deceased daughter Ann Maria Tucker. One of these died -before: the testator,, and in determining whether the -share •of the one.dying lapsed, the court said: “The clause contains a double description antagonistic in legal meaning. The description by names is. .a perfect bequest -to them as individuals, while- the other description as children of the deceased daughter, -standing by itself,, is-a perfect bequest to them as-a class. It must be conceded that, the clause as it is written, with its- double description, free from the-influence or control of other portions of the will, would, according to the adjudicated- cases, be construed as a.personal legacy to each: child. * ■* * The law infers this intent from the specification of names, and regards-the descriptive portion of- the clause as intended for identification.” . ’
In Moffett v. Elmendorf (152 N. T; 175) the will was as follows: " I give and-devise torny aunt,. Catherine Elwell, and my cousins, Mary-*207S. Elmendorf, John D. Elwell, Joseph S. Elwell, Cornelius A. Elwell, Annie A. Elwell, James H. Elwell and Sarah E. Elwell (each to take an equal share thereon), my lots on the southerly side of Sixtieth street,” etc. The court held that this was not' a devise or bequest to a class with the right of survivorship, but that the share of a devisee named, who died before the testator, lapsed and fell into the residuum and passed under one of the residuary clauses.
•In Savage v. Burnham (17 N. Y. 561) it was said: “When a will directs an aggregate fund to be divided amongst individuals by name, share and share alike, the rule seems to be well settled that the interests of those dying before the testator are deemed to have lapsed.”
“ The courts invariably attach great importance to the designation of the devisees severally by name, and to a provision that they shall share the gift in fixed and definite proportions. * * * ‘ When ah equality or inequality of shares is prescribed in express words, the language was always held to create ’. the relation of tenants in common.” (Moffett v. Elmendorf, supra.)
In this clause of the will in question, considering only the words used by the testatrix, it is quite clear that from these authorities the devise was to the children named as tenants iii common. The testatrix devises the property unto her children, naming them, share and share alike. These children are the ones in whom the property is to vest, and they are to hold it in equal shares, thus clearly indicating a devise to those named as tenants in common. The only other provision of the will that could be considered as bearing upon this intent of the testatrix is the provision made for James D. Dusenbury by directing that the sum of $2,000 be placed at interest, and the income paid to him during his life, and the fact that he is excluded from the residuary clause, and the further fact that the children named in the residuary clause were all the living children of the testatrix when the will was made. From this it could be inferred that .the testatrix intended that her children should receive her property, and that Dusenbury’s interest in it should be limited to the provision made for him. But that is the extent to which any inference as to the intention of the testatrix can be found from these provisions of the will. There is nothing in it to show that she *208intended that this bequest should go to the survivor qf her children, ■to the-exclusion of the descendants of those children dying before her, and yét if the-contention of the plaintiff is correct, the surviving children would take a deceased'child’s share, and the descendants of those dying before her woidd have no interest in the property. If the devise was to her children as a class, as there is no provision for the share of the child dying vesting in his or her descendants, we would have to assume that the testatrix intended that in the event of any child dying, leaving descendants, the estáte would vest in the survivor and not in the descendants of the child dying. There is clearly nothing to show such an intention of the testatrix. It is quite probable that the contingency of. one of her children dying before her was- not considered by the' testatrix when the will Was drawn, and ho change was made because óf the. general rule that upon the death-of a child leaving descendants,, a bequest qr devise to such child would not lapse; but it is-quite clear that when the will was made the.testatrix recognized the fact' that Dusenbury was living, and Was entitled to domé provision by the -will, and .as he had .apparently disappeared,. - his existence was not considered important or necessary in making a change in the provisions of the will. TJpon the whole case I fail, to' see any indication of any intention of the testatrix, either -by the Will itself, or by the .extrinsic facts proved-, to /justify us in refusing to give the words used in this clause of the will-their ordinary legal significance, and I think we must conclude that the -devise was not to- a. class,;'but to the individuals, and that upon the death of the two children of the' testatrix during her lifetime, without leaving descendants, the share devised to these two children lapsed and vested in the testatrix’s heirs- at law.. We cannot-say that there is any presumption upon-the facts proved that James D. Dusenbury was not alive at the time of the death of the testatrix, or that-he has hot left-descendants to inherit, or made some disposition by will or otherwise of his-interest in this estate. The testatrix has been dead but little over thirty ■years, and the only testimony is that the husband, of a granddaughter- of the . testatrix who married a few years prior to -the death of the testatrix had no knowledge as to whether Dusenbury was alive or not, and that the family, so far as he knew, had .no such knowledge. . There was evidence that he had been located at. a par*209ticular place within this State at some time not named, but evidently some time prior to the death of the testatrix; but no inquiry had been made at this place where ’he .was last heard from, and nothing was known as to his history since that time. The defendant was entitled to a marketable title, and upon this evidence we do not think that this title to the Seventh street property was marketable, or that the defendant should have been compelled to accept it. Having come to the conclusion that the plaintiff’s title to the Seventh street house was not marketable for the reason above stated, it is not necessary to express an opinion upon the other objections to his title taken by defendant. For the reasons stated, I think the judgment was right and should be affirmed, with costs.
Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.