Henry A. Livingston et al., Appellants, v. David Greene et al., Respondents, and Frederica C. Livingston et al., Appellants

Henry A. Livingston et al., Appellants, v. David Greene et al., Respondents, and Frederica C. Livingston et al., Appellants. The will of L., after giving a life estate in all his real estate to his wife, contained this devise : “From and after the decease and death of my beloved wife, I give and bequeath all my real estate * * * to all my children and to their heirs and assigns, to be equally divided, share and share alike; and should any of my children die and leave lawful heirs, such heirs to receive ” the 'parents’ portion. By a subsequent clause he declared, that upon the death of his wife and a division of the estate, as provided, among his children, their shares should be an estate in fee, and they were empowered to convey, etc. . L. had eleven children, all of whom and his wife survived him. Three of the children subsequently died intestate and withoutissue. A., a son, then died without issue, leaving a will devising his interest in the real estate; thereafter the widow died. In an action for partition, ZteZiZ, that the words, “ should any of my children, die and leave lawful heirs,” in the will of L., referred to a death during the lifetime of thfe testator; that the last clause had reference to an absolute fee, of which a conveyance could only be made by the children after the death of the widow; that the words, “ after” and “ upon the death of my wife," did not make a contingency, but simply indicated when the estate of the children took effect in possession; that the children took a vested remainder, not subject to be defeated by their death prior to that of the widow, and that the devisee of A. was entitled to one-eighth of the real estate. Also, Jidd, that if the words, “ should any of my children die,” etc., could be construed to refer to a death after that of the testator and before that of his widow, it only applied to the case of a child dying leaving children, and did not affect A.’s devise, as no such contingency happened. (Argued January 22, 1873; decided January 28, 1873.) Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment entered upon the decision of the court at Special Term. (Reported below, 6 Lans., 50.) This action was for partition. Henry A. Livingston died in 1849, leaving a will, by which, after giving his wife Frederica 0. Livingston, a life estate in his lands, with certain exemption from liability for use of them, he provided as follows: “Seventh. From and after the decease and death óf my beloved wife Frederica, I give and bequeath all my real estate then being whatsoever and wheresoever, including my mansion-house and farm, to all my children, and to their heirs and assigns forever, to be equally divided, share and share alike ; and should any of my children die and leave lawful heirs, such heirs to receive the portion that their parent would have been entitled to had such parent lived; viz., after the death of my beloved wife Frederica, I give to my son John A. Livingston, one equal share; to my son Abraham H. Livingston, one equal share; to my son Russell Livingston, one equal share; to my daughter Louisa M. James, wife of Edward K. James, one equal share; to my daughter Frederica C. Livingston, one equal share; to my daughter Christina Ten Broeck Livingston, one equal share; to my daughter Cornelia Beekman Livingston, one equal share: to my.daughter Jane Murray Livingston, one equal share; to my daughter Henrietta Ulrica Livingston,, one equal Share; to my son Henry Philip Livingston, one equal, share; to my son Augustus Linlithgo Livingston, one equal share.” “Eighth. * * * *.” “ Ninth. On the event happening of the death of my wife Frederica Livingston, and on a division of my estate in equal - shares amongst my children as named in the seventh section of this my will, I hereby declare such shares to be an estate in fee to them and their heirs or assigns, and they or either of them are empowered to give good and sufficient deeds for his, her or their shares of my real estate.” All of the above-named devisees were living at the death of the testator. Christina Ten Broeck Livingston died intestate, without issue and unmarried, in February, 1849. Cornelia Beekman Livingston died intestate, without issue and unmarried, in December, 1849. Henry Philip Livingston died intestate, without issue and unmarried, in January, 1861. John A. Livingston died, without issue and unmarried, in January, 1865, but leaving a will, whereby he devised his real .estate to certain persons therein named. Abraham H. Livingston died, in December, 1867, without issue, but leaving a will, whereby he gave, devised and bequeathed to his wife, Ann T. Livingston, absolutely, all his real and personal estate and property of every name, nature and description. . Frederica C. Livingston, widow of the testator Henry A. Livingston, died in April, 1870. Ann T. Livingston, widow and devisee of Abraham H. Livingston, died September 5th, 1870, leaving a last will and testament whereby she devised her real estate to the defendants, Abraham K. James, Elizabeth L. Bulle/ and David Greene. The court held and decided that Abraham H. Livingston, by his father’s will, took a vested remainder in fee in said real estate; that this interest passed by his will to Ann T. Livingston, and on the death of the widow of Henry A. Livingston, deceased, became in Ann T. Livingston a fee-simple absolute; and that Abraham K. James, Elizabeth L. Bulley, and David Greene, by. virtue of the will of Ann T. Livingston, became and were entitled to one equal undivided eighth part of said lands and premises Judgment was entered accordingly. Homer A. Nelson for the appellants. Under the will the children of the testator, on his death, had a vested interest in the real estate subject to the life estate of the widow, liable to be divested by their death, without lawful issue, before the death of the widow. (Moore v. Littel, 41 N. Y., 66; Mead v. Mitchell, 17 id., 210.) The intention of the testator, if not inconsistent with the rules of law, must govern, and this intention is to be ascertained from the whole will. (Bradhurst v. Bradhurst, 1 Paige, 331; Covenhoven v. Schular, 2 id., 122; Rathbone v. Dykeman, 3 id., 9 ; Hone v. Van Schaick, 3 Barb. Ch., 488 ; 4 Kent’s Com., 534, 537; Roome v. Phillips, 24 N. Y., 463; 3 Coke R., 19 ; 3 Burr., ; Broomfield v. Crowder, 4 Bos. & Pul., 313.) The words, “ lawful heirs,” used in .the will, mean lineal descendants. (Bundy v. Bundy, 38 N. Y., 410.) Charles H. Wood/ruff for the respondents. Under the will the testator’s children took a vested remainder, not subject to be defeated by their death prior to that of the widow. (Johnson v. Valentine, 4 Sandf., 37; Rose v. Hill, 3 Burr., 1881; Converse v. Kellogg, 7 Barb., 590 ; Cruise Dig., XVI, ch. 1, § 86, n.; Ives v. Legge, 3 T. R., 488, n. ; Doe v. Provoost, 4 J. R., 61; Moore v. Lyon, 25 Wend., 119 ; Croxall v. Shererd, 5 Wal., 268; Doe v. Perryn, 3 T. R., 484; Rogers v. Rogers, 3 Wend., 503; Lantz v. Trusler, 3 Penn. St., 482.) The only condition upon which the estate in fee to Abraham was to be defeated was his death, leaving heirs of his body. (Brown v. Jervis, Cro. J., 290; Att'y-Gen'l v. Gill, 2 P. Wm., 369; Tilbugh v. Barbut, 1 Vesey, 89; Fearne on Rem., 350; Smither v. Willock, 9 Vesey Ch., 234; Harrison v. Foreman, 5 id., 207; Sturgess v. Pierson, 4 Madd. Chy., 411; Everett v. Everett, 29 N. Y., 82; Ives v. Legge, 3 T. R., 488, n. ; 1 Jarman on Wills, 783; Martin v. Martin, L. R., 2 Eq. Cas., 404; Jenkins v. Van Schaack, 3 Paige, 242; 2 Redfield on Wills, 204, § 10; Clarke v. Jonston, 8 Blatch., 557.) Where a testator gives a fee limited on a condition which does not happen, the fee becomes absolute. (Harrison v. Foreman, 5 Vesey Ch., 209; Doe v. Provoost, 4 J. R., 61; 1 Jarman on Wills, 499; 4 Kent Com., 633-643; Jenkins v. Van Schaack, 3 Paige, 242; Myers v. Eddy, 47 Barb., 263 ; Doe v. Prigg, 18 B. & C., 231; Rose v. Hill, 3 Burr., 1881; Moore v. Lyons, 25 Wend., 119; 2 Wash. on R. P., 510; 4 Kent Com., 202, et seg.) Where the language of a will is capable of certain interpretation, the court will not indulge in conjecture as to the intention of the testator. (Myers v. Eddy, 47 Barb., 263 ; Meyers v. Eisler, 29 Md., 31.) [MAJORITY — Peckham, J.] Peckham, J. The testator, after having given a life estate to his wife in all'his real estate, in the seventh clause of his will provides as follows: “ From and after the decease and death of my beloved wife, I give and bequeath all my real estate then being * * * * to all my children and to their heirs and assigns forever, to be equally divided, share and share alike; and should any of my children die and leave lawful heirs, such heirs to receive the portion that their parent would have been entitled to, had such parent lived; viz., after the death of my beloved wife, I give to my son John A. Livingston, one equal share,” and so on, naming all his eleven children. In the ninth clause he declares that “ on the event happening of the death of my wife, and on a division of my estate in equal shares amongst my children as named in the seventh section of this my will, I hereby declare such shares to be an estate in fee to them and their heirs and assigns; and they or either of them are empowered to give good and sufficient deeds for his, her or their shares of my real estate.” It cannot be denied that the children of the testator, under this will, took a vested remainder in his real estate at his death. The common-law and the statute definition of a vested remainder are both satisfied with this provision. (4 Kent, 202; 1 R. S., 723, § 13.) It is said that the law favors vested rather than contingent remainders. This was so at common law for a reason that has long ceased to exist in this State. The reason was that, if contingent, it was in the power of the life estateman to defeat the remainder by a fine or a feoffment. (Ives v. legge, 3 Tr. R., 488, note; 4 Kent, 204, and note.) But the rule seems still to prevail. (2 Wash. on Real Prop., 510; 4 Kent, 204.) The words “ after” and “ upon the death of my wife,” and like words, do not make a contingency, but merely indicate when the remainder shall take effect in possession—the commencement of the enjoyment of the estate. Moore v. Lyons, 25 Wend., 119, is an authority covering this whole case. (4 Kent, 203, and note; Doe v. Provoost, 4 J. R., 61; Boracton’s Case, 3 Coke R., 19; 2 Cr. Dig., 295; Meyer v. Eisler, 29 Md., 31.) 1 Several of the children of H. A. Livingston, the testator, died before his widow, but neither of them left any children. His children all survived the testator. But it is claimed that, in looking at all the provisions of the will, it was the intention of the testator that his children so dying before his widow should take no estate; that if they took a vested remainder at testator’s death, still it was defeated by their death before the widow. The case of Moore v. Littel (41 N. Y., 66) is cited to sustain this position. It fails to do so. There the estate was defeated by the death of one who would have been an heir of the particular estate made, had he survived. But he died during the existence of the particular estate, and hence never became an “ heir.” In that case the devise was to Jackson during his natural life; and after his death, then “ to his heirs,” etc., forever. In regard to the purpose of this will it will not do to depart from well settled rules of construction; from 'the meaning which authorities, well considered, have attached to the language ; the same language, in substance, here employed. The language used in the seventh clause, “ should any of my children die and leave lawful heirs,” in the absence of other controlling provisions, refers to a death in the lifetime of the testator. (Moore v. Lyons, 25 Wend., 119, and cases there cited; Rose v. Hill, 3 Burr., 1881; Converse v. Kellogg, 7Barb., 590.) There are no other provisions in the will at war with this. But there is no occasion for the application of any such rule. By the seventh section of the will a vested remainder had been clearly created in his children; and if the death of any of his children had referred to their death after the testator’s and before his widow’s, it was a death leaving heirs, that is, leaving children. (Bundy v. Bundy, 38 N. Y., 410.) Bo such case has occurred. They all died without leaving children, that is, heirs within the meaning of this clause; hence, the title over was not defeated. This is clear. (Jenkins v. Van Schaack, 3 Paige, 242; 1 Jar. on Wills, 783; Clarke v. Johnston, 8 Blatch., 557.) The ninth section is by no means at war with the seventh, The ninth is speaking of the absolute fee, and states -that the children may then convey such a fee. It is clear they could not convey such a fee before. The judgment should be affirmed. All concur. Judgment affirmed.