This action is brought by certain of the heirs at law of James Thomson, deceased, to obtain a declaratory judgment, determining and declaring the rights of the respective parties to this action in certain parcels of real property, of which the said James Thomson died seized and possessed, and also to certain personal property of which he was possessed at the time of his death, and for certain other incidental relief. Motions were made by certain of the defendants for judgment on the pleadings and an order was entered dismissing the complaint and adjudging that the title to said property vested in fee simple in Anne D. Thomson *700on the death of said James Thomson under the provisions of his will and, on the death of Anne D. Thomson, vested in fee simple in the devisees under her will.
The question presented is whether, under the will of said James Thomson, his wife, Anne D. Thomson, took the personal property absolutely and the real property in fee simple or whether she took a life estate in the same.
For the reasons given in the accompanying opinions in Livingston v. Ward (216 App. Div. 675), herewith handed down, this court is of the opinion that said Anne D. Thomson took only a life estate. From which it follows that the real and personal property which remained in the residuary estate of James Thomson upon the death of Anne D. Thomson neither passed to the appointees of the power named in the 18th paragraph of the will of James Thomson nor to the residuary devisees named in the will of Anne D. Thomson, but such property vested by operation of law in certain plaintiffs and defendants, parties hereto as the heirs at law and next of kin of James Thomson.
It follows that the judgment and order should be reversed, with costs, and an order entered declaring that neither the residuary devisees under the will of Anne D. Thomson, deceased, nor any of the charitable and benevolent corporations or societies have any right, title or interest in and to the real and personal property described in the complaint, and that they be enjoined and restrained from at any time interfering with the possession of, or asserting any claim with reference thereto against those parties whom the court shall determine are entitled to the possession thereof; that Charles M. Hough, as executor of the last will and testament of Anne D. Thomson, deceased, shall be directed to account for and pay over to such of the parties hereto and'in such proportion as the court shall determine them to be entitled, the personal property received by Anne D. Thomson under and by virtue of the residuary bequest in the will of James Thomson, and now in his possession as such executor, together with the costs of this action; that the action be severed and judgment entered in favor of the plaintiffs and against the said defendants, with costs, and that the matter be remitted to the Special Term to hear and determine the issues as between the heirs of James Thomson, deceased.
Dowling, Merrell and McAvoy, JJ., concur; Martin, J., dissents.
Judgment and order reversed, with costs, and an order directed to be entered as indicated in opinion. Settle ordér on notice.