In Hersee v. Simpson (154 N.Y. 496) at page 502, the court says: "Moreover, the general policy of the law favors a construction which includes the vesting of estates and consequent certainty in respect to the title to property, and which prevents the disinheritance of the issue of a remainderman who may die during the existence of the precedent estate.Summary of this case from Miller v. Von Schwarzenstein
Submitted December 10, 1897
Decided December 17, 1897
Fred W. Ely for appellant. Tracy C. Becker for respondents.
In determining the question involved, the inquiry is presented whether the testator intended to confer upon his widow a life estate in all his property with a vested remainder in those who should be his heirs at the time of his death, or whether his intent was to postpone the vesting of the remainder until the death of the life tenant. As bearing upon this question, it is to be observed that the testator created no trust by his will. He devised a life estate in his real property to his wife, and provided that, from and after her decease, the property should be disposed of according to the laws of the state of New York governing the descent of real property. Thus the question is narrowed to this: Were the words "from and after" her death sufficient to limit to a contingent remainder the estate which was devised to his heirs. Obviously, the question is the same as if the testator had, in express terms, devised his property to his wife for life, and from and after her death to his heirs. Indeed, that is the substance and effect of the provision in the testator's will.
The rule is well settled in this state that a remainder is not to be considered as contingent in any case where, consistently with the intention of the testator, it may be construed as being vested. Words or phrases denoting time, such as when, then, and "from and after," in a devise of a remainder, limited upon a particular estate determinable on an event which must necessarily happen, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of its vesting. This is especially so in the construction of devises of real estate. ( Moore v. Lyons, 25 Wend. 119, 144; Sheridan v. House, 4 Keyes, 569; Livingston v. Greene, 52 N.Y. 118, 123; Ackerman v. Gorton, 67 N.Y. 63, 66; Nelson v. Russell, 135 N.Y. 137.) Many other cases might be cited where this doctrine has been held, but we have deemed it necessary to refer only to such as are in all their essential particulars like the present case. In Moore v. Lyons there was a devise of real estate to one for life, and "from and after" his death to three others, and it was held that the remaindermen took a vested interest at the death of the testator. In the Sheridan case there was a grant of lands for life to one, and after his decease to his heirs, and there it was determined that his heirs took a vested estate. In the Livingston case the testator gave his wife a life estate in his real property, and then devised to his children all his real estate "from and after" the death of his wife, which it was held created a remainder in the children which vested at the death of the testator. In the Ackerman case the testator devised certain real estate to his wife to be enjoyed by her during life, and "from and immediately after her decease" to be divided among his children, and again this court held that upon the death of the testator his children took a vested remainder in the lands so devised. In Nelson v. Russell it was held that the words "from and after" in a testamentary gift of a remainder, following a life estate, were insufficient to justify the conclusion that the remainder was contingent and not vested, and that unless their meaning was enlarged by the context they were to be regarded as defining the time of the enjoyment simply, and not the vesting of title, that the presumption was that the testator intended that his disposition should take effect in enjoyment or interest at the date of his death and upon the happening of that event, unless the language of the will, by fair construction, made his gifts contingent, they would be regarded as vested.
The principle of these cases is entirely decisive of the question involved in this case. There is nothing upon the face of the will, aside from the words "from and after," which in any way tends to sustain or give color to the construction that the vesting of the remainder was postponed or intended to be postponed beyond the death of the testator.
Moreover, the general policy of the law favors a construction which includes the vesting of estates and consequent certainty in respect to the title to property, and which prevents the disinheritance of the issue of a remainderman who may die during the existence of the precedent estate. This principle is based upon the idea that, in the absence of express words, it cannot be supposed that such was the intent. In the case at bar, the testator gave all his residuary estate to his wife for life, and "from and after" her death to those who would inherit it under the statutes governing the descent of real property. When we apply to this provision the rule stated, it becomes manifest that his heirs upon his death took a vested remainder in all his real property.
The learned counsel for the appellant has called our attention to several cases which are claimed to be in conflict with this conclusion. An examination of them, however, discloses that the questions involved in this case were not presented in the cases to which he refers, or that the facts and provisions of the will in those cases were so variant as to render them of no especial value as authorities upon the question before us. We deem it unnecessary to discuss or examine in detail the cases cited, or to point out the clear distinction which exists between them and the case under consideration, as it would serve no good purpose.
The judgment should be affirmed, with costs.