#### Elizabeth A. Kelly, Plaintiff, *v.*Rachel Josephine Kremm et al., Defendants.

(Supreme Court, *New*York Special Term,

December, 1912.)

Real property — conveyance of, in trust — vesting of title to — Statute of Uses.

Upon a conveyance of real property to the grantee and her heirs, in trust for her two children named in the deed, “ and the survivor of them,” such children take the use for life only, which by virtue of the Statute of Uses vested in them as a legal estate of like quality, and, upon the death' of the survivor of the two children, the remainder in fee vests in the heirs of the grantee.

The nature of the action and the facts, so far as material, are stated in the opinion.

James R. Bowen, for plaintiff.

Putney, Twombly. & Putney (Richard Kelly, of- counsel), for defendants Kremm.

Giegerich, J..

The action is brought under- section 1638 of the Code of Civil Procedure to compel the determination of a claim to certain real property known by the street numbers 129 and 131 Elizabeth street, in the city, county and - state of Kew York, and more particularly described in the complaint.. The only defendants who have appeared are Rachel Josephine Kremm, Marietta Josephine Kremm and Georgiana W. Kremm. The plaintiff and the defendants who have appeared claim title to the' premises in-question. under a deed made by Daniel Anderson- and Catherine, his wife, to Christina Hammet, dated the 10th day of March, 182-7, and recorded in the office of the register of the county of ¡New York on the 16th day of -March, 1827, in liber 216 of conveyances, at page 161. The material parts of the said deed are as follows: “ This indenture made the tenth day of March, in the year- of our Lord one thou*577sand, eight hundred and twenty-seven, between Daniel Anderson of the City, County and State of Hew York, Cordwainer, and Catherine, his wife, parties of the first part, and Christina Hammet of the same city, market woman, in trust for her children Michael Punt and Elizabeth Hammet and the survivor of them, party of the second part. Witnesseth, that the said parties of the first part for and in consideration of the sum of twelve hundred and fifty dollars lawful money of the United States of America, to them in hand paid at or before the ensealing and delivery of these presents by the said party of the second * * * the receipt whereof is hereby acknowledged, and the said party of the second part, her heirs, executors and administrators forever released and discharged from the same by these presents have granted, bargained, sold, aliened, remised, released, enfeoffed, conveye-d and confirmed, and by these presents do grant, bargain, sell, alien, remise release, enfeoff, convey and confirm unto the said party of the second part and to her heirs and assigns forever. * * * [Here follows a description of the property.] * * * To have and to hold the above granted, bargained and described premises with the appurtenances unto the said party of the second part her heirs and assigns, to her and their own proper use, benefit and behoof forever. And the said Daniel Anderson for himself, his heirs, executors and administrators doth covenant, grant, promise and agree to and with the said party of the second part, her heirs and assigns, that the said party, Daniel Anderson, at the time of the sealing and delivery of these presents is lawfully seized in his own right of a good, absolute and indefeasible estate of inheritance in fee simple of and in all and singular the above granted, bargained and described premises, with the appurtenances, and hath good right, full power and lawful authority to grant, bargain, sell and convey the same in manner and form aforesaid. And that the said' party of the second part, her heirs and assigns, shall and may at all ti-mes hereafter' peaceably and quietly have, hold, use, occupy, possess and enjoy the above granted premises and every part and parcel thereof with the appurtenances with*578out any let, suit, trouble, molestation, eviction or disturbance of the said parties of the first part their heirs or assigns or of any other person or persons lawfully claiming or to claim the same.” On July 1, 1839, the said Elizabeth Hammet was married to one Jacob Somerindyke. On or about November 4, 1839, the said Christina Hammet, the grantee named in the deed, died intestate, leaving her surviving as her only heirs at law her said children, Michael Punt and Elizabeth Somerindyke, and a third and younger child, Anna M. Hammet, born subsequently to the execution of the said deed, and who intermarried with one James T. Griswold. The said Michael Punt died intestate on or about May 6, 1850, leaving him surviving his widow, Zillah Punt, who died on March 23, 1858, and his two half-sisters, Elizabeth Somerindyke and Anna M, Griswold. Elizabeth Somerindyke died intestate on or about November 13, 1855, leaving her surviving her husband, Jacob Somerindyke, and her daughter, Elizabeth A. Somerindyke, her sole child and heir at law. The latter intermarried with one Thomas Scanlon. He died and she subsequently married one Edward Kelly. The said Elizabeth A. Kelly died intes-. tate on or about November 7, 1879', leaving her surviving as her only child and heir at law her daughter, Elizabeth A. Kelly, the plaintiff herein. The said Jacob Somerindyke, the husband of Elizabeth Somerindyke, died intestate on or about June 19, 1891. For about ten or fifteen years prior to 1888 the said Jacob Somerindyke collected 'rents from tenants of the said premises, and from the said year 1888 down to the time of his death he collected the entire rents of the premises. He remarried after the death of his said wife Elizabeth, and had three daughters by his second wife, who upon his death entered into possession of the premises, claiming the same in fee to the exclusion of the plaintiff, and' they continued in possession and collected and retained the rents of the premises until the year 1895, when they surrendered possession of the same to the plaintiff. On or about February 10, 1894, the said Anna M. Griswold died leaving a last will and testament, by which, after making' certain bequests of personal *579property, she gave, devised and bequeathed unto Oscar D. Kremm all the rest, residue and remainder of her estate, both real and personal. On January 19, 1907, the said Oscar D. Kremm died intestate, leaving him surviving his widow, the defendant Kachel Josephine Kremm, and his children, the defendants Marietta Josephine Kremm and Georgiana W. Kremm, his sole heirs at law, who claim that they are the owners of record of an undivided share of the property as tenants in common with the plaintiff. Their claim is disputed by the plaintiff, who claims an estate in fee simple in the entire. property as the granddaughter of Elizabeth Somerindyke, nee Hammet, who, as above shown, survived her brother Michael Punt, and who it is claimed, as survivor, took an estate in fee simple under the conveyance of Anderson and wife to Christina Hammet. The defendants Kremm, on the other hand, contend that Michael Punt and Elizabeth Hammet merely took a life estate and that the fee vested in Christina Hanpnet. As already shown, they claim through one Anna M. Hammet, a child of Christina Hammet,.who was born after the execution of the above mentioned deed. The case thus turns upon the construction and effect of the said deed from Anderson and wife to Christina Hammet. The case of McElroy v. McElroy, 113 Mass. 509, is authority for the proposition that where the technical word “ heirs ” is necessary to the creation of an estate in fee by deed a conveyance to A and his heirs in trust for B will give B no more than an estate for life. It was unnecessary to decide this point in Van der Volgen v. Yates, 9 N. Y. 219, where the only question to be decided was whether or not there was a reversion in the grantor, and that was the only question that the court assumed to decide. I conclude, therefore, on the authority of the Massachusetts case, that under the conveyance of Anderson and wife to Christina Hammet and her heirs, in trust for her two children therein named and the survivor of them, the latter took the use for life only, which by virtue of the Statute of Hses was vested in them as a legal estate of like quality. It thus becomes necessary to inquire whether upon the death of the survivor *580of the two children the remainder in fee reverted to the grantor or vested in the heirs of Christina Hammet, and I reach the latter conclusion upon the authority of Van der Volgen v. Yates, *supra.*If I am correct in the foregoing views, it follows that the plaintiff acquired by descent an undivided one-half part or share in the premises in question, and that by descent and devise the defendants Marietta Josephine Kremm and Georgiana W. Kremm are entitled to a like share, unless their rights have been lost through the adverse possession of the plaintiff and her predecessors in title. I think that the plaintiff has failed to establish such adverse possession and for several reasons: First, as the plaintiff does not claim under or through Jacob Somerindyke, she cannot tack his adverse possession to her own. Smith v. Reich, 80 Hun, 287, 289; affd., 151 N. Y. 642; Berkowitz v. Brown, 3 Misc. Rep, 1, 7. Secondly, the estate claimed by Jacob Somerindyke was-an estate for life, and his possession under such claim cannot be availed of in support of the plaintiff’s claim to title in fee. Bedell v. Shaw, 59 N. Y. 46, 50; De Lancey v. Hawkins, 23 App. Div. 8; affd., 163 N. Y. 587; Doherty v. Matsell, 119 id. 646. Thirdly, the possession of Jacob Somerindyke and of the plaintiff was not continuous, but was interrupted by the hostile possession of his daughters. Kellum v. Corr, 149 App. Div. 200, 210; Bliss v. Johnson, 94 N. Y. 235, 242. It follows that the plaintiff must be adjudged to be seized of an undivided one-half part of the premises only and the defendants Marietta Josephine Kremm and Georgiana W. Kremm of the other undivided one-half part, subject to the dower right of their mother. The findings have been passed upon as indicated on the margins. Submit for my signature upon two days’ notice of presentation a complete decision embodying a direction for judgment in the form requested by the defendants Kremm, with proof of service on the other side.

Ordered accordingly.