#### George W. Johnson, plaintiff, *v.*Henry Spicer *et al.,*defendants.

*(Supreme Court, General Term, First Department,*

*Filed October 21,*1886.)

1. SURPLUS MONEYS — ARISING FROM MORTGAGE FORECLOSURE — AGREEMENT IN CONTEMPLATION OF MARRIAGE — WHAT CAN BE DISPOSED OF BY —What is not an expectant estate.

This action was brought for surplus money arising out of a foreclosure sale. The property sold was purchased by G-eorge Spicer, July 1883, subject to the mortgage under which the sale was made. In July, 1884, he died intestate, leaving appellants and others heirs at law. His widow survived him until January-1885, when she died intestate without issue and leaving no known heirs. Prior to her intermarriage with Spicer, and in 1847, she entered into an antenuptial agreement with him by which it was covenanted and agreed that in the case of the decease of the party of the first part without leaving lawful issue by the contemplated marriage previous to the decease of the party of the second part, that then and in that case all the real and personal property he may die possessed of shall belong to and be the property of the party of the second part. After the decease of the widow an act of the Legislature was passed, releasing the right and interest of the State in the lands to the person to whom, by the order herein appealed from, the surplus money had been awarded. *Held,*that at the time when the agreement was made there was in the husband no expectant estate in it, as such estates have been defined' by the statute. That a mere possibility or contingency unconnected with any interest in or growing out of property cannot be made the subject of a valid sale or grant. That theState acquired no interest in the property upon which the act could be made to operate.

2. Same — What is an expectant estate.

If, at the time when the agreement was entered into, George Spicer had wned the real estate out of which the surplus money arose, then a contingent interest, title or estate in it would have vested in the other party to the agreement who subsequently became his wife.

3. Same — When an agreement testamentary must be executed as a will.

Whether the clause in the agreement is not altogether defeated by the fact that it was testamentary in its provisions and void, because not executed with the ceremonials prescribed for the execution of a will, *Quaere.*

Appeal by Francis Spicer and Emeline A. Scarff from an order made directing the disposition of surplus moneys.

*David Thurston*for defendants, applt’s; *Edward F.*Brown, for plaintiffs, resp’t.

Daniels, J.

The moneys in controversy arose out of the sale under the foreclosure of a mortgage, of the premises known as 61 East 52d Street in the City of New York. The property was purchased and acquired by a deed executed and delivered to George Spicer, on or about the 3d day of July, 1883, subject to the mortgage under which the sale was made. In Juty, 1884, Spicer died intestate, leaving the appellants and others his heirs at law. His widow survived him until the 18th of January, 1885, when she died intestate without issue, and leaving no knoAvn heirs. Prior to her intermarriage with Spicer and on or about the 9th of June, 1847, she entered into an antenuptial agreement *41with bim by wbieli it was covenanted and agreed that in the case of the decease of the party of the first part without leaving lawful issue by the contemplated marriage previous to the decease of the party of the second part, that then and in that case all the real and personal property he may die possessed of, shall belong, and be the property of the party of the second part.

After the decease of the widow, Chap. 377 of the Laws of 1885 was enacted, releasing the right and interest of the State in the lands, to the persons to Avhom by the order appealed from, the surplus money has been awarded. The order seems to have proceeded upon the theory that, by this clause in the agreement, the title to the property vested in the widow of George Spicer at the time of his decease, and she having died without heirs, it became the property of the State and was released by this act to the persons held to be entitled to the surplus. And whether this direction was correctly made will depend upon the construction and effect of this clause of the antenuptial agreement.

If at the time when the agreement was entered into George Spicer had owned the real estate out of which the surplus moneys arose, then a contingent interest, title or estate in it would have vested in the other party to the agreement, who subsequently became his wife. *Hathaway*v. *Payne*34 N. Y., 92-104-7; *Long Island R. R. Co.*v. *Conkling,*29 N.Y., 572.

For, as an agreement between these parties contemplating marriage, it was an instrument legally binding upon each of them. Laws, 1849, chap. 375, sec. 3. *Young*v. *Hicks,*27 Hun, 54; affirmed 92 N. Y., 235.

But at the time when the agreement was made, and also when the marriage itself was solemnized, neither of these parties had any right, title, or interest whatever to or in this property. There was accordingly in the husband no expectant estate in it as such estates have been defined by the statute, and no interest which by its provisions was made descendible, devisable or alienable. 2 R. S., 6th ed. 1103, Sec. 35. *Pond*v. *Bergh,*10 Paige 140.

The effect of this part of the instrument is therefore to be determined by the settled principles of the common law, and by them a mere possibility, or contingency, unconnected with any interest in, or growing out of property, cannot be made the subject of a valid sale or grant. 2 Kent, 7th ed. 592—note.

A mere possibility is not the subject of a grant, although it may be released to the owner of the land. This subject was considered in *Jackson*v. *Catling,*2 John 248, and the principle was reiterated by KeNT, C. J., delivering the opinion of the court that a mere possibility is not the subject of a grant, unless it be a possibility coupled with an interest. Id. 261, And that Avas deemed to be the settled law of the State by Senator Tracy, Avhose opinion Avas adopted by the Court of Errors, for *42the decision of the case of *Jackson*v. *Waldron,*13 Wend. 178; Id. 222. The same principle was fully reviewed again by that court in *Edwards*v. Varick, 5 Denio 664, and it was there held to be part of the settled law of the State. Id. 692-3. What Spicer had, if he can be said to have anything whatever, at the time when the agreement was made, was no more than the barest possibility that he would acquire the title to this property as he did by the conveyance made to him in the year 1883. As a grant, therefore, the agreement in no manner operated upon it, or conveyed any interest in it to the person who became his wife. But this portion of the agreement was at most executory in its character, entitling her to its specific performance after the period of his own decease. And agreements for the transfer or conveyance of a possible interest afterwards accrueing in property have been so considered and enforced by Courts of Equity. This subject was very fully and exhaustively examined in *Stover*v. Eyclesheimer, 46 Barb. 84, aud this conclusion was considered to be the effect of the authorities.

Under these principles the extent of the right of the widow in this property upon the decease of her husband was that of maintaining an action at law for damages or in equity for the specific performance of tins part of the agreement. The title was in himself at the time of his decease, and it necessarily descended to his heirs subject to this right of the widow, to a specific performance, if the clause in the agreement is not altogether defeated by the fact that it was testamentary in its provisions, and void for the reason that it was not executed in compliance with the provisions of the statute directing the ceremonials to be observed for the legal execution of a will. Certainly the State acquired no interest in the property upon which the Act of 1885 could be made to operate. And as the widow took no proceedings to compel the specific performance of the agreement, the legal title to the property since her decease continuéd to be vested in the heirs of the husband, until the foreclosure and sale of it were made. And being seized of that title, they legally owned the surplus arising out of the foreclosure sale which took place after the decease of the widow. The order made should be reversed, and an order entered directing this surplus to be distributed among the heirs at law of George Spicer, but without costs against the respondents.

Brady and Churchill, JJ., concur.