Opinion
Argued March 3, 1899
Decided April 18, 1899
E.H. Benn for appellant. George M. Diven for respondent.
This action is in ejectment and relates to lands that the defendant entered into possession of more than a quarter of a century ago under a deed to which this plaintiff and his wife were parties of the first part. Samuel Partridge and wife, who were the father and mother of Anna P. Hall, the plaintiff's wife, executed and delivered to her a certain deed of the premises in question by which there was conveyed to her a life estate therein, with the remainder to the heirs of her body her surviving; at the time of the delivery of the deed she had one child, who subsequently died, but long before April, 1873, the date of the deed to this defendant; afterward plaintiff's wife died, leaving no surviving children, and his claim is that the remainder was vested in the child and upon the latter's death descended to him.
It will be observed from the statement made that a serious difficulty confronts the plaintiff at the outset in the fact that long after the death of his child, by which event he claims that the property descended to him, he united with his wife in a deed conveying the premises to this defendant. It is true that the deed, after the description of the premises, contained the following: "The said premises above described and hereby conveyed are shown on a map hereto annexed, which, for the purposes of description, is made a part of this conveyance; and the lands laid down and marked upon said map as streets, to wit, Junction street, Home street and South street, are hereby dedicated and reserved by all the parties hereto for and as public streets, and the said Sylvester W. Hall joins in this conveyance for the purpose of such dedication, so far as said streets as laid down upon said map are situate upon lands belonging to him." It is urged by this appellant that this clause shows that the purpose of the plaintiff in uniting in the deed with his wife was merely to give effect to an agreement between the parties as to the dedication of certain lands for highway purposes, and that it embraced lands owned by the plaintiff individually; while on the other hand it is insisted that the introduction of the clause in the deed was for the purpose of bringing within the scope of it certain lands laid out for streets on land of the plaintiff, and not for the purpose of cutting down or qualifying in any way the legal effect of the execution of the deed by the plaintiff, wherein he describes himself as one of the parties of the first part.
It certainly cannot be told with any degree of certainty, from an examination of the instrument alone, what the parties really intended, nor is it our province to indulge in any speculation about it. The plaintiff saw fit to bring an action in ejectment, and finds himself confronted with a deed he executed, and by which, in terms, he grants to the defendant the premises in controversy, and he is not in a position to claim that the deed should be so modified as to become such a deed as it was his purpose to execute. If it be true that he did not unite in the deed for the purpose of conveying, among other things, whatever interest he had in the premises which were being conveyed to this defendant, and that the purpose was merely to assure to the grantee the continued use of certain streets that had been laid out upon lands belonging to him, then, instead of bringing a common-law action of ejectment, the plaintiff should have brought suit on the equity side of the court to so reform the deed that it should express the real agreement of the parties. In this action he must fail because of the existence of a deed, executed by himself, by which, upon its face, he grants to this defendant whatever interest he had in the premises in suit.
The plaintiff's alleged cause of action has still another infirmity. The habendum clause in the deed from Samuel Partridge and wife to the plaintiff's wife reads as follows: "To have and to hold all and singular the above-mentioned and described premises unto the said party of the second part, for and during her natural life, and at her death to the heir or heirs of her body her surviving. With the appurtenances, and all the estate, title and interest therein of the party of the first part." It is our construction of this clause, in connection with the rest of the deed, that by the deed there was conveyed to Mrs. Hall a life estate with the remainder over, and that such remainder must be held to be a contingent remainder under the statute, contingent upon Mrs. Hall's leaving issue of her body her surviving, so that until her death it could not be determined who was entitled. The Revised Statutes define vested and contingent estates as follows: "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 land, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain." (1 R.S. 723, § 13.) The remainder is contingent because both the person to whom, and the event upon which the estate is limited to take effect, are uncertain. The words "heirs of her body," as used in the habendum clause, mean descendants, and, therefore, the person to whom the remainder over is to go must be a child or descendant, and the event upon which the estate takes effect is the death of the life tenant leaving some descendant her surviving. The requirement that the reversion should go to an heir of her body her surviving places a contingency upon the remainder, for it could not be determined until the death of the mother whether she would leave an heir of her body her surviving. This conclusion is supported by the decision of this court in Purdy v. Hayt ( 92 N.Y. 446). In that case the remainder was limited to the children of the testator's niece that she might leave, and there was a gift over to take effect in case of her death not leaving lawful issue. Judge ANDREWS said: "The remainder is not to the children of the testator's niece, as a class, but to such children as she may leave at her death. The children now living may not survive their mother, and whether they will ever be entitled to take under the will depends upon that contingency, and whether any of her present children will survive her cannot, of course, be known until her death. This brings the remainder precisely within the statute definition of a contingent estate, which declares that future estates are contingent whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain, and within the fourth class of contingent remainders mentioned by Mr. Fearne."
As the child died, leaving no descendants, long before the death of his mother, the latter event found the lands undisposed of by the deed, and, as a necessary result, the plaintiff without title thereto.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.