Barlow v. Barlow — 2 N.Y. 386

Majority

p. 386

Cyrus Barlow vs. Mary Barlow et al.

Headnote

A testator by his will, made in 1805, devised the use and improvement of his farm to B. during his life, and after his death to James, the eldest son of B, and to the heirs of his body and their heirs and assigns for ever; but in case James should have no such heirs, then to Cyrus, the brother of James, and his heiis Held, that James took a vested remainder in tail expectant on the termination of the life estate of B., which, by the operation of the statute abolishing entails, was converted into a fee simple, and that the limitation over to Cyrus was cut off by the operation of that statute.

Ejectment for a lot of land in the town of Stanford, countv of Dutchess, tried before Barculo, circuit judge, in November, 1846.

Thomas Braman, in 1805, made his will, one. clause of which was as follows: “I give and devise to Braman Barlow, who now resides with me, the sole use and improvement oi the farm whereon I now live, in the said town of Stanford, during his natural life, and at his decease to his eldest son, James Barlow, and to the natural heirs of his body, and to their heirs and assigns forever; but in case he should have no such heir or heirs, then and in such case I devise said farm to his brother Cyrus Barlow, and to his heirs and assigns forever.” There was a further condition to the devise to Braman Barlow, that he should occupy the farm himself, and in case he sold or leased the farm, his title was to cease. Thomas Braman died in 1808, seized of the premises in question. Braman Barlow occupied the farm, *and died in 1845, leaving a widow, Mary Barlow, one of the defendants, having had four children, James, Maria, Cyrus and Miram. James died in 1817, without children. Cyrus, the second son, is plaintiff in this suit. The defendants were in possession at its commencement.

Upon the facts above stated, the judge charged that, by the terms of the will, James Barlow having died without issue, Cyrus Barlow was entitled to an estate in fee in the premises described in the declaration, and was entitled to recover the whole premises, and directed the jury to find a verdict for the plaintiff.

p. 387

To this opinion and decision of the judge the defendants excepted. The supreme court allowed a new trial, and the plaintiff appealed from that decision to this court.

J. Thompson, for appellant.

Wm. Eno, for respondents.

By the Court,

According to the will of Thomas Braman, Braman Barlow took an estate for life in the premises in question, remainder in tail to his son James Barlow, remainder in fee to his second son Cyrus. (But. Fearne, v. I, 426, 7; Driver v. Edgar, Cowp. 379.) As the remainder limited to James Barlow, vested upon the death of the testator, it was converted by the statute of 1786 into a remainder in fee. (Wendell v. Crandall, 1 Comst. R. 491.) James became a new stock of descent, and upon his death, in 1817, the land, which is the subject of this suit, descended to his father as his heir at law. The charge of the judge was therefore erroneous, and the supreme court were right in awarding a new trial.

The other points discussed upon the hearing, have been considered and determined in Lott and wife v. Wykoff, decided at this term.^[1] There must be a new trial.

New trial granted,^[2]

1 Ante, 855.

2 Brown v. Lyon, 6 N. Y. 419 , 438.