Nelson v. Russell

The determination of this appeal depends upon the question whether, under the will of David Barry, his grandchildren James and Ellen Barry took on the death of the testator a vested remainder in fee in the premises No. 358 Cherry street, in the city of New York. It is claimed in behalf of the plaintiff, the purchaser of the premises under a contract with Bridget Russell, the daughter of the testator, who took a life estate under the will, and the two grandchildren named, that the remainder was contingent and that in case of the death of the two grandchildren during the life tenancy, or of either of them leaving issue, such, issue would take as purchasers the share which would have gone to the parent if living. Upon this ground it is insisted the title tendered was defective.

The controversy turns upon the true construction of the third paragraph of the will, which is as follows: “ I give and devise 'unto my beloved daughters, Catharine Barry and Bridget Russell, all my real property in the city of New York, and known as numbers 356 and 358 Cherry street, and the rents, issues and profits thereof for and during the term of their natural lives, and from and after the decease of my said daughters, Catharine Barry and Bridget Russell, and each of them, I give and bequeath the said premises number 356 Cherry street to James Russell, the son of my said daughter Bridget Russell, and upon the like events I give and bequeath the said premises number 358 Cherry street to James Barry and Ellen Barry, the children of my son Michael Barry, now deceased, to be divided equally between them and their heirs, share and share alike, the child or children of a deceased child taking the share which his, her or their parent would have taken if living.”

We are of opinion that by the settled rules of construction the two grandchildren, James Barry and Ellen Barry, who survived the testator, took upon his death a vested remainder in fee in the premises in question and that the provision for their issue was by

But the authorities are quite uniform that the words “ from and after,” used in a gift of a remainder following a life estate, do not afford sufficient ground in themselves for adjudging that a remainder is contingent, and not vested, and unless their meaning is enlarged by the context they are regarded as defining the time of enjoyment simply, and not of vesting the title. Moore v. Lyons, 25 Wend., 119 ; Livingston v. Greene, 52 N. Y., 118 ; Rose v. Hill, 3 Burr., 1882; Doe v. Prigg, 8 B. & Cress., 231.

The presumption is that a testator intends that his dispositions are to take effect either in enj oyment or interest at the date of his-death, and unless the language of the will by fair construction makes his gifts contingent, they will be regarded as vested. Words-of survivorship and gifts over on the death of: the primary beneficiary are construed, unless a contrary intenti¿n appears, as relating to the death of the testator. Vanderzee v. Slingerland, 103 N. Y., 55 ; 2 St. Rep., 732 ; Matter of N. Y., L. & W. R. R. Co., 105 N. Y., 92 ; 6 St. Rep., 851 .

There is nothing so far as we can discover on the face of the will, aside from the words “ from and after,” to give any color to the construction that the vesting of the remainder was postponed beyond the death of the testator. ¡Nor is there even the apparent injustice which sometimes results from the rule of construction to which we have adverted. The son of the testator, the father of the grandchildren, James and Ellen Barry, to whom the remainder was given, had died before the testator and there could be no disinheritance of subsequently born issue. The gift was to the grandchildren “ and their heirs.” Under the construction of the will claimed by the plaintiff, they might never derive any benefit under the will.

We think the present judgment cannot be maintained without departing from settled rules of construction which have become landmarks of property.

Judgment reversed and judgment ordered for the defendants on the argued case.

All concur.