#### Louis Lese, Plaintiff, *v.*Orlando A. Miller et al., Defendants.

(Supreme Court, New York Special Term,

December, 1900.)

Marketable title — Contingent remainder — Survival until period of distribution.

Under a testamentary trust to collect and invest the personalty of the testator, receive the rents of his realty and pay both the income and the rents to his wife for life, and after her decease to pay the residue to his children, the issue of any such children, should any *307have died before his wife, to take *per stirpes*the share their deceased parent would have taken if living, the vesting of the remainder is contingent upon the condition that the child or the issue thereof should survive until the death of the testator’s wife, the period of distribution, and therefore where a child and her child die before the testator’s wife, the father of the child does not take anything in right of the child.

Action to recover a deposit made by plaintiff with defendants upon the execution of a contract for the sale by defendants to plaintiff of premises ¡No. 117 Lewis street, Hew York city, together with counsel fee and disbursements incurred by plaintiff upon the examination of title to said premises, upon the ground that the title tendered by defendants was defective and unmarketable.

Samuel Levy, for plaintiff.

Stanton & Hopldns, for defendants.

Lawrence, J.

This action is brought to recover a deposit made by the plaintiff with the defendants upon the execution of a contract for the sale by the defendants to the plaintiff of the premises ¡No. 117 Lewis street, in the city of ¡New York, together with counsel fee and disbursements incurred by the plaintiff upon the examination of title to said premises, upon the ground that the title to the same tendered by the defendants to the plaintiff was defective and unmarketable. Upon the trial all the material facts were admitted by a stipulation between the parties, from which stipulation the following facts appear: William H. Miller died on the 23d day of March, 1870, seized of the premises in question, and leaving a last will and testament,which was duly admitted to probate by the surrogate of the county of Hew York. He left him surviving his widow, Mary Ann Miller, and four children, Orlando A. Miller, Mary A. Bailey, Caroline A. Mandeville (afterwards Caroline A. Adams), Harriet Van Riper and a stepson, William H. White, also known as William H. Miller. Harriet Van Riper died intestate on January 3, 1874, leaving her surviving her husband, Thomas Van Riper, and an infant son, also named Thomas Van Riper, who died intestate on the 4th day of April, 1875, leaving his father, Thomas Van Riper, who has since remarried. The stepson, William H. White, or William H. Miller, died intestate on the 23d of *308December, 1896, leaving him surviving two children, Mary E. Maurer and William H. Miller. The widow above named, Mary Ann Miller, died February 3, 1899. The point in dispute between the plaintiff and the defendants is the interest that Harriet Van Riper, or her issue, took under the will of William H. Miller; the plaintiff claiming that she took a vested remainder which descended to her infant son, and through him at his death to his father, Thomas Van Riper, and the defendants, that whatever interest she or her issue took under the will of her said father was contingent, or was divested and ceased absolutely upon the death of herself and her infant son. In his will, William H. Miller devises his residuary estate, real and personal, including the premises in question, as follows : “ III. All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind or description, and wheresoever’ situated, I give, devise and bequeath unto my executrix and executor hereinafter named, or the survivors of them, in trust: 1. To collect, get in and receive that part of said estate as may consist of money, stocks, bonds or similar securities, and to convert all the said securities into money. 2. To invest and reinvest the same in their joint names as such executrix and executor in good and substantial securities, consisting of United States bonds, or bonds and mortgages on improved real estate in the cities of Hew York and Bi’ooklyn worth at least double the amount of said bonds and mortgages. 3. To collect and receive the rents, issues and profits of the same, and of such real estate as I may be possessed of at my death. 4. To pay over the same, after deducting the necessary expenses for collection, to my beloved wife, Mary Ann Miller, during the time of her natural life. 5. After the decease of my said wife, then to convey, assign, transfer and set over all the rest, residue and remainder of my estate, wheresoever situated, unto my children, including among said children my stepson, William H. White (being a son of my wife by a former marriage), in equal portions, share and share alike (the issue of any such children, should any have died before the death of my said wife, taking *per stirpes*the share that their deceased parent would have taken, if living), to have and to hold the same for their own proper benefit, use and behoof forever. IV. I hereby nominate, constitute and appoint my beloved wife, Mary Ann Miller, and my son Orlando A. Miller to be executrix and executor of this my last will and testament, and I hereby revoke and annul all former and other wills or codicils heretofore *309made by me.” On the above state of facts, I am of the opinion that the gift or devise to Harriet Van Riper or her issue was contingent upon her or such issue surviving the testator’s wife, and that such survivorship at the time of the distribution was an essential condition to the vesting in her or her issue of any interest in the property of the testator. It is well settled that where a will is the subject of construction the intention of the testator as disclosed by the will, not a general rule of construction, is to govern when they come in conflict. Matter of James, 146 N. Y. 78. In this case the testator in his will does not specify his children by name or specify the number who are to share in the final distribution. It is quite clear that the persons who were to take the principal estate eould only be determined upon the death of the wife. Until such death the person or persons who are to take the future estate are uncertain, and therefore it seems to me that the defendants’ counsel is right in his contention that the vesting of the estate was contingent upon the survivorship by the child, or her issue, of the testator’s wife. See Clark v. Cammann, 14 App. Div. 127; 160 N. Y. 315; see, also, Camp v. Cronkright, 59 Hun, 488; Flanagan v. Staples, 28 App. Div. 319. If there is anything in the case of Matter of Crane, 36 App. Div. 468, cited by the plaintiff, which is in conflict with the case of Clark v. Camman, inasmuch as the affirmance, of that case in the Court of Appeals occurred after the Matter of Crane was decided, I must follow the later case as containing the latest expression of the views of the Court of Appeals upon the subject. I am also of the opinion that it was clearly the intention of the testator that only his children and their issue should take any portion of his estate under his will. Matter of James, 146 N. Y. 78-100, before referred to, Mr. Justice Gray, in delivering the opinion of the court, says: “ But all the cases that I have seen recognize that the rule of intention must always override established rules of construction. It is only where the instrument fails to express, or to disclose, an intention, that we must resort to the rules which have been established by the decisions of the courts.” I think it is irresistibly inferable from the will before me in this case that the testator did not intend to die intestate as to any of his property, nor that, if either of his children, or the issue of any child, should die before the period of distribution arrived, to-wit, the death of the testator’s widow, any portion of that estate should go to and be divided among strangers, which would be the result in case the claim of the father *310of the infant child of Harriet Van Riper, as the heir-at-law of such child, to an interest in the testator’s property is sustained. For these reasons there must he judgment for the dismissal of the complaint -upon the merits, with costs.

Complaint dismissed, with costs.