Opinion
Argued December 3, 1890
Decided January 14, 1891
William Romer for appellant. Sidney Ward for respondents.
No question is made that Joseph Griffin and John C. Griffin, the sons of Stephen Griffin, each derived title under the will of the latter to one equal undivided third part of the premises described in the complaint. The contention is in relation to the title of the remaining third, and that depends upon the validity and effect to be given to the deed of quitclaim from Joseph to John C. Griffin, on the 6th day of February, 1851, and the deed confirmatory of that deed from Joseph to John C. Griffin, bearing date September 15, 1864. If those deeds, one or both, are valid and effectual, the defendants, who claim under John C., are entitled to the premises, but if not valid and effectual, the plaintiff claims to be entitled to one undivided third part of said premises, or, in other words, the question in controversy is, which of the parties to this action is entitled to the disputed one undivided third part of the premises; for the plaintiff's contention is to the effect that the deed from Joseph to John C. was void, and that the title to that one undivided third remained in Joseph, to which plaintiff has succeeded. Joseph Griffin assumed to convey his estate, or interest in the premises in question, to John C. Were his deeds effectual for that purpose?
By the terms of the will, Stephen Griffin, the testator, devised this one-third to John C. in fee in either of two events, viz., that John C. should survive his then wife Deborah, or should have a child by his wife Deborah, who should live until it attained the age of twenty-one years, but if neither of these events should transpire, then this one-third should go to Joseph Griffin, his heirs and assigns forever. Neither event transpired. John C. did not survive his wife Deborah, and did not have by his wife Deborah a child that lived till it was twenty-one years of age. Joseph Griffin died in 1868, and devised all his estate to his son, his only heir, Richard H.W. Griffin. John C. Griffin died in 1873, leaving no children, and devising his estate, subject to a legacy of $2,000, to his adopted daughter, the income of the remainder of his estate to his wife for life, and also to his wife one-half of such remainder in fee, and the defendants have succeeded to the estate so devised.
What estate did Joseph Griffin take in the disputed one-third? Under the will of Stephen, this one-third went to John C. until it was determined that his wife Deborah did not survive him, or that they should not have a child, who should live till it was twenty-one years of age. Deborah did survive John C., who died in 1873. His death before the death of Deborah determined one contingency. The other contingency was also determined certainly within the year succeeding the year 1873, and probably several years before that.
The contention upon the part of plaintiff is that the interest or estate of Joseph was a mere possibility, and so not alienable. The contention of the defendants is that the estate of Joseph was an expectant estate and so alienable under sec. 35, ch. 1, title 2, part 2, R.S., which provides that "expectant estates are descendible, devisable and alienable in the same manner as estate in possession." ( Lawrence v. Bayard, 7 Paige, 76; Pond v. Bergh, 10 id. 140; Beardsley v. Hotchkiss, 96 N.Y. 201, 213, 214; Crooke v. County of Kings, 97 id. 421, 449; Ham v. Van Orden, 84 id. 257, 270; Miller v. Emans, 19 id. 384.)
The question for solution, therefore, is, what was the character of the estate in this one-third devised to Joseph upon the failure of these contingencies to occur?
The chapter of the Revised Statutes above referred to contains the definitions and nomenclature of the various estates in land. "An estate in expectancy is where the right to the possession is postponed to a future period." (§ 8, R.S. supra; Ham v. Van Orden, 84 N.Y. 257.) Judge DANFORTH in the opinion in that case, says: "It does not seem necessary to determine whether an interest at once vested in her, or whether time and the happening of the specified event were of the substance of the gift, and prevented it from vesting until the event happened. In either case she acquired an interest (R.S. 723, art. 1, tit. 2, part 2, chap. 1, § 10), although the right to possession was postponed to a future period and depended upon the contingency of the death of Wessel without children. This did not prevent the creation of the estate, but rendered it liable to be defeated. (Art. 1, chap. 1, tit. 2, part 2, vol. 1, R.S. 725, § 31.) It was an estate in expectancy (§ 9, p. 725, id.), however, and could not be destroyed by any alienation, or other act of Wessel or his trustee (§ 32, id.), and upon his death, without children, would become absolute in the plaintiff. It was, therefore, alienable by her to the same extent as if in possession (§ 35, id.), and whether it be deemed vested or contingent." ( Moore v. Littel, 41 N.Y. 66; Crooke v. County of Kings, 97 id. 421; Hennessy v. Patterson, 85 id. 91; Nellis v. Nellis, 99 id. 505.)
And estates in expectancy are divided into future estates and reversions. (§ 10, R.S. supra.) "A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination by lapse of time or otherwise, of a precedent estate created at the same time." ( Crooke v. County of Kings, 97 N.Y. 449.) "Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent when the person to whom or the event upon which they are limited to take effect remains uncertain." (§ 13; 97 N.Y. supra; Beardsley v. Hotchkiss, 96 id. 203-214.)
From these definitions and characteristics of estates it follows that John C. had an estate in possession and in fee until the happening of at least one of the events specified in the will of Stephen; and Joseph also had a future expectant estate in the same one-third if said events or contingencies should not happen, and the estates of both of them were created at the same time and under the will of Stephen, their father. (§ 10, R.S. supra.)
Joseph and John C. together owned an estate in fee, and could, at the time of the execution of the deeds from Joseph to John, together have conveyed to a third person a present estate of inheritance, and it seems to us very clear that what each of them might have conveyed to a third person, he might convey to the other and with the same result, viz., an estate of inheritance. I do not perceive upon what theory the trial court awarded a recovery to the plaintiff of the undivided half of the premises. Assuredly the deed from Joseph to John C. conveyed the one-third which was devised to Joseph in fee. But this consideration is of no moment, nor is there any occasion to consider any other question, having reached the result that the disputed one-third was alienable and was conveyed by Joseph Griffin to John C.
The order should be affirmed and judgment absolute with costs should be awarded to defendants.
All concur.
Order affirmed and judgment absolute for defendants.