The order of the Appellate Division does not show that the reversal was upon the facts, and, therefore, it must be assumed that the reversal was upon the law. (Code of Civil Procedure, section 1338.) Among other facts it is alleged in the complaint and found by the trial court, that on the 29th day of October, 1853, Charles G. Case was the owner in fee and in possession of the premises described in the complaint, and on that day he executed and delivered a deed of the same to Thomas W. Chesbro and Amos G. Hull, as trustees for Charles James Case and his lawful heirs, which contained the following provision: "It is understood and agreed that this grant is made in trust for *Page 351 the benefit of Charles James Case of Fulton and the lawful children of the said Charles James Case under the conditions and restrictions following, to wit: * * * And it is further understood that in case the said Charles James Case should have a lawful child or lawful children living at the time of the decease of the said C.G. Case, the grantor herein, and at the time of the decease of the present wife of said grantor, then the premises hereby conveyed are to vest in such child or children." The deed contained the further provisions to the effect that the grantor and his wife should retain possession of the premises during their lives. Charles James Case was the son of Charles G. Case, the grantor, and died on the 20th day of May, 1874, leaving him surviving Charles G. Case, 2nd, his only heir at law. Thereupon Charles G. Case, 2nd, and his wife joined with the trustees named in the deed in a quitclaim deed of the premises back to his grandfather, Charles G. Case, the grantor in the trust deed. Charles G. Case then executed his last will and testament, bearing date the 22nd day of May, 1874, in which he devised the use and occupancy of the premises in question, together with other property, to his wife, Mary Ann Case, during her natural life, with a power to sell and the right to use the proceeds, if necessary, for her support, and then provided as follows: "In case my executrix and executors do not find it necessary to meet the provisions of the first clause of this will, to dispose of the property hereinafter mentioned during the lifetime of my said wife, I do will and direct in regard thereto as follows: Item. I give and bequeath unto my adopted daughter the home where I now reside, including house, barn and grounds with the fixtures and appurtenances thereunto belonging, the same to vest in her in fee upon the decease of my said wife, to have and to hold forever." Charles G. Case departed this life on the 9th day of December, 1875, leaving Mary Ann Case, his widow, and Charles G. Case, 2nd, his only surviving heir at law. Mary Juliet Porter was the person referred to as his adopted daughter and she died without issue on the 24th day of June, 1892, and Mary Ann Case, the widow, died on the *Page 352 27th day of January, 1899, six years and a half after the death of the adopted daughter. Immediately after the death of Mary Ann Case, the widow, Charles G. Case, 2nd, the grandson, entered into the possession of the premises and continued to reside therein until the 4th day of March, 1899, when he sold and conveyed the same to the plaintiff. The defendants are the heirs at law of Mary Juliet Porter.
It is further alleged and found as a fact that the testator by his last will and testament, "made further provisions for the benefit of the said Mary Juliet Porter and his said grandson, and it was his intention that in case said Mary Juliet Porter should die before the death of his said wife, Mary Ann Case, that then and in that case under and by virtue of said last will and testament the title to the premises and lands hereinbefore mentioned should vest in fee upon the death of said Mary Ann Case in the said Charles G. Case, 2nd." The trial court then found as conclusions of law that the quitclaim deed by Charles G. Case, 2nd, back to his grandfather conveyed no title or interest to him; that no right, title or interest in or to the premises ever vested in Mary Juliet Porter under or by virtue of the will, and that the defendants had no right, title or interest in the premises.
I intend to discuss but one question raised upon this appeal, and for that purpose shall assume, but without so deciding, that the quitclaim deed from Charles G. Case, 2nd, and the trustees to Charles G. Case was valid, and restored the title to the premises to the original grantor, so that he could, if he so desired, devise the same to his adopted daughter. The question then arises as to the construction that should be placed upon the provision of the will to which we have referred. The Appellate Division, without discussing the question, has asserted that under the provisions of the will the fee to the premises vested in the adopted daughter, and upon her death descended to her heirs at law. In this I differ with the conclusion reached by that learned court. Its conclusion is not consistent with the facts as found, which that court has by its order stated to be undisputed. In construing wills the chief *Page 353 duty of the court is to ascertain and determine the intent of the testator. The determination of such intent usually involves the consideration of a mixed question of law and fact. The court has to take into consideration the provisions of the instrument and the surrounding circumstances under which it was executed. The trial court, as we have seen, has found as a fact that the intent of the testator was to vest the fee in his grandson in case of the death of his adopted daughter before that of his widow. If this was his intention, then certainly he could not have intended to vest the fee in his adopted daughter as of his death, so that the fee would descend to her heirs at law in case of her death before that of the widow.
While this appeal might be disposed of upon the finding alluded to, I prefer to rest my conclusion upon a construction of the instrument itself. It appears to me that the intention of the testator is hardly open to question, and in reaching that conclusion I have had in mind the statute defining vested remainders, and the rules followed by the courts in ascertaining the intention of testators. Where a testator has created a life estate with a remainder to a person in being, that person takes a vested remainder from the date of the death of the testator; but the testator may by the express provisions of his will otherwise provide, and that is what it appears to me he has done in this case. He has expressly specified that the premises in question should vest in his adopted daughter in fee upon the decease of his wife. There is a definite time named when the vesting shall take place, and obviously that carries with it an implied negation of a vesting at an earlier period. (2 Jarman on Wills, 467.) It is the fee that then vests, not the possession only, as is claimed. Had the testator intended that the premises should vest in possession on the death of his widow it would have been an easy matter to have so said, but such is not his direction. Instead, he specifically states that the fee, that is, the title, interest, ownership of his adopted daughter shall then vest. This distinguishes the case from the numerous cases on record in which remainders have *Page 354 been held to be vested as of the date of the death of the testator.
But it is now contended on behalf of the defendants that a rule that is sometimes recognized by the court in ascertaining the intention of the testator should be invoked for the purpose of showing that the testator did not intend what he said in the will, but that he, in fact, intended that the remainder should vest as of the date of his death. This rule is that where a person has left a last will and testament it ordinarily will not be presumed that he intended to die intestate as to any portion of his estate. But this rule, like most of the rules sometimes resorted to by the courts in construing wills, has its exceptions, and one is that a testator ordinarily will not be presumed to have intended that his estate should go to strangers to his blood or to persons of whom he had never heard or seen. The record before us does not disclose the history of the adopted daughter. Where the testator found her or how he came to take her into his family does not appear. It is not claimed that he ever legally adopted her so as to entitle her to inherit as an heir at law. We are not advised as to whether he ever saw or heard of the defendants who appear to be her remote heirs at law. From the order of publication appearing in the record it appears that they are non-residents of the state, some residing in the state of Kansas. To hold that the testator intended that the fee should vest in his adopted daughter as of the date of his death is to hold that, in case of her death before that of the testator's widow, he intended that these premises should descend to these defendants, of whom he possibly had never before heard, in preference to his grandson, with whom he was apparently upon good terms and who had but a few days before given him a quitclaim deed of these premises. Such I do not not believe was his intent and purpose. I think that he meant just what he so clearly stated, and that is, that the fee should vest in his adopted daughter at the death of his widow, and, she having died before the widow, the devise lapsed. No other provision having been made in the will *Page 355 with reference to this particular piece of property it descended to the testator's heir at law, his grandson, Charles G. Case, 2nd, who by his conveyance to the plaintiff vested the title in her. The other provisions of the will are in harmony with this view. The testator also sets apart the sum of $20,000.00 to be held in trust for his adopted daughter during her natural life, containing a provision to the effect that in case of her death, leaving lawful heirs of her body, the fund should go to such heirs; but if she left none, it was then given to his grandson, Charles G. Case. The same provision appears in the residuary clause, in which his estate is divided into two parts, one for the benefit of his adopted daughter and the other for the benefit of his grandson, and here we find a similar provision with reference to the issue of her body in case of her death. It is thus apparent that the purpose of the testator was to divide his estate between his grandson and his adopted daughter, and in case either should die leaving children, the issue or the heirs of their bodies, such children should take the parent's portion, but in no place in the will is there any mention of the next of kin or heirs at law of his adopted daughter other than the issue of her body.
It has been persistently insisted on the trial of this action and by the Appellate Division that this action was brought for the determination of a claim to real property under the Code of Civil Procedure, sections 1638 and 1639. If such is the nature of the action it was prematurely brought and cannot be maintained, for it expressly appears that only about eleven months intervened after possession of the premises was taken by the plaintiff's grantor before the bringing of the action, and the complaint fails to comply with the express provisions of the Code in not alleging "that the property at the commencement of the action was and for one year next preceding has been in his possession or in the possession of himself and those from whom he derived his title." But such does not appear to me to be the nature of the action. The complaint very fully sets forth all the facts and then concludes by asking judgment that the deed executed by Charles *Page 356 G. Case, 2nd, and wife to Charles G. Case be declared to be a cloud upon the plaintiff's title and null and void, and that it be adjudged that Mary Juliet Porter or her heirs at law took no vested interest in the property under the will of Charles G. Case. While the deed and will are matters of record, the circumstances under which they are sought to be annulled or adjudged to have lapsed depend upon facts not of record, which can only be established by oral testimony which may soon be lost to the plaintiff and her title thereby rendered defective. It appears to me that the allegations of the complaint bring the case clearly within that of Fonda v. Sage (48 N.Y. 173), in which it was held that to constitute a cloud upon a title "it is sufficient that there be a deed, valid upon its face, accompanied with a claim of title under such circumstances that a court of equity can see that the deed is likely to work mischief to the real owner. It is not necessary in order to maintain an action to remove the cloud and quiet the title, that the claimant should have a prima facie record title which the real owner must call in extrinsic evidence to overthrow."
I think the judgment of the Appellate Division should be reversed and that of the trial court affirmed, with costs to the plaintiff in the Appellate Division and this court.
BARTLETT and VANN, JJ. (and GRAY and MARTIN, JJ., in result on first ground), concur with O'BRIEN, J.; PARKER, Ch. J., concurs with HAIGHT, J.
Judgment affirmed.