Foley v. Foley

At common law the rules, which governed the holding and transmitting of real property, were so complicated and so unsuitable to the development of a new country, that they began to be; modified here by various legislative enactments soon after the formation of the State governments. Our Revised Statutes took a, long step towards the simplification of those rules, and esjieciallyin relation to the vesting of estates in land and their alienability. By them estates in respect to the time of their enjoyment are; divided into estates in possession and estates in expectancy, and an. estate in expectancy is defined to be one to which the right of possession is postponed to a future period. Estates m expectancy are divided into future estates and reversions. Where a future; estate is dependent on a precedent estate it may be termed a, remainder, and such future estates are either vested or contingent. They are vested where there is a person in being who would have; an immediate right to the possession of the lands should the intermediate or precedent estáte cease. Expectant estates are descendible, devisable and alienable in the same maimer as estates in possession.

In the light of these plain and simple rules this case can b& examined with satisfaction, and reduced to its proper place without; elaboration or difficulty. In the first part of his will the testator evinces a plain intention to devise a life estate to his wife in the house; and lot in question, and" the fee to the children of his daughter Margaret, if any are born and living at her death. Then comes;

The widow died in 1874. Foley died in 1877, and the daughter Margaret died in 1878, without children. What estate did John Foley take under this will ? The determination of the life estate of the widow was all that was necessary to entitle him to take the ■property. It is true the birth of children to the daughter Margaret, who should survive her, would defeat his estate, but they "were subsequent conditions, and it is no objection to the vesting ■of an estate that subsequent events may defeat it. If there be a person in being having an immediate right to the possession upon "the determination of the precedent estate, then he has a vested ■remainder under the provision of our statute, and John Foley •occupied that position in respect to this property, even though the ■wife and daughter both took life estates under this will which we •clo not decide. •

The plain intention of the testator was to give the fee to this ■property to his nephew, unless there were children of his daughter living at her death. That was a' subsequent event which might •defeat his estate, but until this happened the ultimate fee was in him, and he took the possession when the life estate ceased. The ■case of Wolfe v. Van Nostrand ( 2 N. Y., 436 ) turned upon the peculiar language of the will which was as follows : Speaking of the property “ which I do hereby give and devise unto my said ■dearly beloved wife Hannah during her life, and after her ■death in case my daughter Elizabeth should die without having named or without leaving a child or children, I give and devise "the house and lot of ground,” etc., “ unto William Newton.” The ■daughter survived the mother, but died without issue, and it was .'held that the devise over to Newton was contingent upon the death •of the daughter without children before the death of the mother ; "that the devise was to him after the death of the wife in case Elizabeth should die childless, which condition qualified what would ■otherwise have been an absolute devise, and made it contingent .and dependent upon a condition which never happened. The con■dition introduced into this will is a condition subsequent, which

The order appealed from must therefore be affirmed, with costs and disbursements.

Barnard, P. J., and Gilbert, J., concurred.

Order overruling demurrer affirmed, with costs.