Webel v. Kelly

Ingraham, J.:

The action was for specific performance of a contract for the sale of real property by which the plaintiff agreed to sell to the defendant a certain piece of property in Forty-third street, in the city of Mew "York, of which .property Henry Bernard Webel was seized at the time of his death. He left a last will and testament in which, after certain bequests, he provided : “ All the balance of my real estate, including, my house and' lot No.. 35 West 43rd street, (the property in question) I direct my executor to. hold - in trust and which I specially • direct shall not be sold during'.the lifetime of mv said'adopted'son, but that my executor collect all the- rents, issues and. profits.thereof, and .after payment of -taxes, assessments' and other necessary expenses," I direct tpe same to ■ be. invested in the same manner and the.interest devoted, to the said purposes aé. above specified and payable in the same manner in point of time to my said adopted son after he shall arrive at the age of twenty-one., years and until- he shall arrive at the age of twenty-five years. Next, on the arrival- of my said adopted son at the age-of twenty-five years, I direct my said executor to. convey all my real éstate I may so own unsold and aill securities and other property moneys, principal and interest to my said adopted son»to be held by him as follows :'

“TV.- In.caseof my said adopted son departing this-life before me or in case of his so departing this life after my death "without leaving lawful issue, then -I give all my property, real and personal" and of every kind to" my nephews Louis Webel, Charles Webel, and my .niece Caroline Webel, sons and daughter of my deceased brother Lewis, to be owned by- them equally, share, and share alike", and to their children, per stirpes and not per capita, and in casé of the -death- of iny said adopted son before the age of twenty-five yéársj'.without such - issue, I hereby make it a part of the trust that my executor" shall see this last provision of my. will carried into effect, -and sConvey said property above named to -my said- nephews and niece.”' -. . " . -

The plaintiff Was the adopted son of the -testator. When. he. arrived at the age of twenty-five years the executor and trustee conveyed the property-to the plaintiff. The conveyance recited that -it was by virtue of the power and authority to him" given-by the foregoing will, arid- conveys the estate that the testator had at the time of li-js decease and- thé éstate which the trustee had povver to convey or dispose of. The estate to: which the adopted soil, would be--entitled' und'e'r this clause of the will was “to be held by him as follows; ” that Was, in case of his departing this life after the death of- -the testator,. without leaving lawful issue, the. property érty was to-go to-the testator’s nephews and niece. There was. no general devise of the property to the plaintiff. His sole title to it was through a conveyance from the trustee, under the direction of the will, by which the trustee was directed to convey the property to the plaintiff upon his arrival at the age'of twenty-five years, to be held by the plaintiff under this clause of the will. I am inclined to think that this gave to the plaintiff a life estate in the property, with remainder to his issue. The trustee made provision for the support of the plaintiff prior to his arrival at the age of twenty-one years. He then gives to the plaintiff the total income of the property while he is between twenty-one and twenty-five years of age. During that time the trustee is to remain in possession of the property, paying to the plaintiff the income. When he arrives at the age of twenty-five years provision is made for a conveyance of the property by the trustee to the plaintiff, “to be held by him as follows,” and then coines the provision that if the plaintiff should die before the testator, or after the death of the testator without lawful issue, there should be a remainder over. This remainder over is to happen in the event of the death-of the plaintiff after the testator’s death, and is not limited to his dying before he reaches the age of twenty-five years, as by the 3d clause the plaintiff would have no title to the property until he arrived at the age of twenty-five years, and the property so to be conveyed was thereafter to be held by the plaintiff as provided for in the 4th clause of the will.

The evident intent of the testator was to provide that this property should go to his adopted son, the plaintiff, and his children; but if he left no children, then the property should go to his nephews and niece. I think, reading the 3d and' 4th clauses together, thatxthe plaintiff- took a life estate in the property with a remainder over to his issue; but in the event that he died without issue, there was a limitation over by way of executory devise to his nephews and niece; that this was not dependent upon the plaintiff’s dying without issue prior to his arriving at the age of twenty-five years, for such a contingency is provided for in the same clause of the will, as, in that event, namely, the death of the plaintiff. i before arriving at the age of twenty-five years, the testator directs that his executor shall enforce the provision and convey the property to his nephews and niece. This intention is strengthened by' the provision in the 3d clause of the will that the property should-not be sold during the life of the plaintiff. It can be effectuated by holding that the plaintiff took a life estate in the property only.

This construction of the will is sustained by Vanderzee v. Slingerland (103 N. Y. 47). In- that case the testator’s son Cornelius entered into possession of the property under an express devise thereof'contained in the will of "the testator. By that will the testator provided that all of his real estate “I devise to my son Cornelius, subject to the proviso- hereinafter contained.” The will then made certain charges upon the property, consisting of annuities to his wife, daughters and grandchildren, and then' provided: “ In conclusion, my will is that if my son Cornelius dies without issue, that then the estate herein devised to him' shall go to my grandchildren, hereinafter named.” It was held that this clause referred to the death of his son Cornelius after the death of the tes-, tator; that in that even,t, on the death of -the testator the grandchildren took a contingent interest under the will by way of executory devise which., .on the death of Cornelius without issue, was. converted into a fee in them, thereby displacing and subverting the conditional fee before that time vested in Cornelius.

I think, therefore', that the plaintiff could not give a good title to the property, and that the judgment should be affirmed, with-costs.

O’Brien, P. J., and Clarke, J., concurred.