[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 324 We are of opinion that the purchaser should not be compelled to complete his purchase.
Jeremiah H. Monarque died in 1864, seized of the premises sought to be partitioned in this action, leaving a widow and four daughters, and several grandchildren, the children of two of the daughters surviving him. By the first clause of his will he gave to his wife the use of all his real and personal estate during her life. The second clause is as follows: "I give and bequeath the income arising from my estate to my daughters, Ellen Requa, Louisa Dixon, Eliza and Mary, to be divided between them, share and share alike, during their and each of their respective natural life, and remainder to their respective children and to their respective heirs and assigns forever." By the third clause he directed that if either of his daughters should die without lawful issue, the share of said deceased daughter or daughters "shall be divided between the survivor or survivors of them, share and share alike, and to their children respectively, as before expressed."
There was no illegal suspension of the power of alienation of the property devised. The manifest design of the testator by the first and second clauses of the will was to give successive life estates in the property, first to his wife, and then to his daughters, remainder in fee to their children, and this is the construction of the language used. The gift of the income, by the second clause, to his daughters for life, was equivalent to a devise to them of a life estate in the land: (Kerry v.Devrick, 8 Co., 95 b.; Cro. Jac., 104; Earl v. Grim, 1 Johns. Chy., 494; Schemerhorn v. Schemerhorn, 6 id., 70; 3 Wn. on Real Property, 450.) But the devise to the daughters for life, although embraced in a single clause in which all are named, is by the well settled construction of similar clauses, a devise to each in severalty of a life estate in one-fourth part of the property. (Savage v. Burnham, 17 N.Y., 561; Everitt v. Everitt, 29 id., 39; Stevenson v. Lesley, 70 id., 512.) The consequence is, that on the termination of the life estate of the widow, *Page 325 and the death of any daughter of the testator leaving children, the remainder in fee, as to the one-fourth part, would immediately vest in possession in such children. The absolute ownership or power of alienation of the estate is not, therefore, suspended beyond the period of two lives in being at the death of the testator. It is not material to consider the third clause of the will as bearing upon this question. Whatever construction may be given to that clause, the death of the second life tenant is the period when under either clause, the fee of the share of such life tenant vests absolutely in the devisees and beneficiaries.
The remainder given by the second clause vested upon the death of the testator, in the children of the testator's daughters living at that time, subject however to open and let in after-born children, who might come into existence during the life of the mother: (2 Jarm. on Wills 75; 2 Wn. on Real Property, 511, and cases cited.) Three of the daughters of the testator are still living, and each of them may have children not yet in esse, entitled to take under the will. It is quite certain therefore, that unless the contingent interests of unborn issue of the daughters have been in some way barred, the title of a purchaser in the partition proceedings will be imperfect. It is claimed that the judgment in the suit brought for the construction of the will, declaring the second and third clauses to be void, is conclusive as to the invalidity of the will. That action was brought by one of the daughters, and the other daughters and the widow and grandchildren of the testator were joined as defendants. The adult defendants did not answer, and a general answer was put in by the guardian ad litem of the infants. The case was submitted without evidence. No objection was taken to the jurisdiction of the court, and the judgment was practically, as may be inferred, a judgment by consent. The case was not a proper one for bringing an action for the construction of a will. There was no trust or other element to justify invoking the jurisdiction of the court for that purpose: (Bowers v. Smith, 10 Pai., 193; Post v. *Page 326 Hover, 33 N.Y., 593; Chipman v. Montgomery, 63 id., 221.) But the court having entertained jurisdiction, and no objection thereto having been made, it may be as is claimed by the plaintiff, that the judgment is conclusive upon the parties thereto: (Bowers v. Smith, supra; Clarke v. Sawyer,2 N.Y., 498.) It is not necessary now to determine this question; but the judgment cannot bind the contingent interests of unborn children of the testator's daughters. They, of course, could not have consented to the action and will not be concluded by the judgment.
Nor does the judgment in the partition suit bar the future contingent interests of persons not in esse. A judgment and sale in partition may conclude contingent interests of persons not in being, but this is only in cases where the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of the land, and preserving it to the extent necessary to satisfy such interests as they arise: (Mead v. Mitchell, 17 N.Y., 210; Brevoort v.Brevoort, 70 id., 136.) The complaint makes no reference to the fact that any persons other than the plaintiff and her mother and sisters have or may have any interest in the premises in question. On the contrary, it avers that by the will, and the judgment in the suit for the construction of the will, the plaintiff and the defendants Eliza Requa and Louisa Dickson became and are entitled to the fee of the lands, subject to the life estate of their mother. The claim of title made in the action by the plaintiff and her sisters is in hostility to the will, and as heirs at law of their father. The judgment takes no notice of the rights of unborn issue, and does not bar or conclude them. The court did not undertake to pass upon their rights, or to protect them by its judgment.
The order of the General and Special Terms should be reversed, and the motion denied, with costs.
All concur.
Ordered accordingly. *Page 327