Longhead v. Dykman's Baptist Church & Society — 35 N.Y. St. Rep. 270

Majority

p. 270

Henrietta A. Longhead, App’lt, v The Dykman’s Baptist Church & Society, Impl’d, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Wills—Devise—Society not incobpobated at testatob’s decease.

By a testator’s will he devised certain real estate “ at the death of my wife ” to defendant, to be used as a parsonage, and provided that when the society ceased to use it for that purpose it should revert to his heirs-at-law. At the time of testator’s death defendant was not incorporated, but it was incorporated prior to the death of the widow. Held, that the devise was not intended to operate until the death of the widow, and that the-incorporation of defendant having taken place prior to that event it was competent to take.

p. 271

Appeal from judgment in favor of defendant.

F. S. Barnum, for app’lt; Abram J. Miller, for resp’t.

We assume the law to be that if the remainder given to the defendant by the testator’s will vested at the death of the testator, then the devise is void because at such time the defendant was not incorporated, and that the subsequent incorporation o£ the defendant during the life of the life tenant would not validate the devise. The law was so held in Owens v. Missionary Society, 14 N. Y., 380 , and Marx v. McGlynn, 88 id., 368, and .the rule is recognized in Shipman v. Rollins, 98 id., 311. The question then arises whether the devise vested at the death of the testator, or that of his wife, the life tenant. The language of the will is “ At the death of my wife I give and devise, etc.” The natural reading of this language would postpone the devise till the death of the wife. But it must be conceded that the law .so favors the immediate vesting of estates that ordinarily, under a long line of decisions, the word “ at ” would be construed to refer to the time of enjoyment of the estate, not of its vesting. We think that this case is taken out of the ordinary rule by the limitations imposed on the devise. By the will it is provided that the land devised shall be used as a parsonage by the society and church, and that when the society ceases to use it as a parsonage, it shall revert to the testator’s heirs at law. The devisee could, therefore, not alien or dispose of it. The testator never contemplated that the devisee should have any advantage of the devise till the death of his wife. The right of property and -right of enjoyment were to go together, and under the will there could be no right of property apart from the right of enjoyment. If the society had been incorporated at the time of the testator’s death, ■and subsequently became extinct, the devise would have failed. It was thus necessary that the devise should survive till the death •of the life tenant to receive the devise; and thus the devise was necessarily contingent upon the existence of the devisee at ■the termination of the life estate. We, think, therefore, that we are justified in holding that the devise was not intended to -operate till the death of the wife, and, if that construction be correct, the incorporation and existence of the defendant at that period will, under Shipman v. Rollins, supra, render it a competent devisee.

The judgment appealed from should be affirmed, with costs.

Pratt, J., concurs.