#### HINCKLEY v. MAYBORNE et al.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Wills—Construction—Suspending Power of Alienation.

A devise to two persons, “to be used and occupied by them during the term of their natural life, and at their death’’’ to pass to another in fee, does not suspend the power of alienation beyond two lives in being.

2. Same—Estate in Fee after Life Estate—Defeasance.

Under a devise in fee after a joint life estate, providing that in case of the death without heirs of the devisee before the death of the tenants for life the fee should vest elsewhere, the fee so vests where such death intervenes between those of the tenants for life.

Controversy between Cordelia A. Hinckley as plaintiff and William A. Mayborne and others as defendants, submitted without action on an agreed statement of facts, to determine the ownership of property devised. Judgment for defendants.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JJ.

*959Charles S. Baker, for plaintiff.

James L. Weeks, for defendants.

ADAMS, J.

This is a submission of a controversy upon a case containing the facts agreed upon, as required by section 1279 of the Code of Civil Procedure, and such facts, so far as it is necessary to state them, are as follows, viz.: One Selina E. Sheldon died February 27, 1886, leaving a last will and testament containing these provisions:

> “(1) I give and bequeath the brick house and about thirty-five acres of land connected therewith, which I now own and occupy in the village of Sherman, to Henry and Chauncey L. Sheldon, to be used and occupied by them during the term of their natural life, and at their death the same shall go to my son George in fee simple. (2) I give and bequeath to Henry Sheldon and Ghauncey Sheldon all my personal property, to be used by them for their support and maintenance during the term of their natural life, and at their death what is left shall go to my son George Sheldon and his heirs. (3) In ease of the death of my son George without heirs before the death of said Henry and Ghauncey L. Sheldon, I give all my said property equally to William A. May-borne, Joseph H. Mayborne, Henry J. Willing, and Elizabeth A. Willing.”

Henry Sheldon, the husband of the testatrix, died July 13, 1886. George Sheldon, a son of the testatrix, died without heirs, December 10, 1892. Chauncey L. Sheldon, a brother of the testatrix, died March 22, 1894. At the time of her death, the testatrix was the owner in fee simple of the property mentioned in the first clause of her will, which instrument was properly executed, and has since been duly admitted to probate. The defendants are the present owners, by devise or purchase, of the interests of the parties named in the third clause of the will, and insist that, upon the death of Chauncey L. Sheldon they became the absolute owners of the real estate, and all that remained of the personal estate left by the testatrix; and this claim is opposed by the plaintiff, as the grantee of George, upon the grounds: First, that the devise mentioned in the first clause of the will is invalid, in that it attempted to suspend the power of alienation for more than two lives in being at the time of the creation of the estate; and, second, that the condition which, by the third clause of the will, was to defeat the estate of George Sheldon in the premises mentioned in the first clause, has not happened, for the reason that he survived Henry Sheldon. Thus it will be seen that the determination of the controversy requires the construction of certain provisions of the will of Selina E. Sheldon. In so far as the first clause of that instrument is claimed to be obnoxious to the statute against perpetuities, it is difficult to see upon what canon of construction the claim is based, or why the aid of the court should be invoked, for its. language is clear and unambiguous, and scarcely admits of more than one interpretation. By it the husband and brother are given a life estate in the premises in question, and, of course, the “absolute power of alienation” is suspended during the existence of such estate, which it is quite clear should be measured by the life of the survivor of these two life tenants. But upon its termination the absolute fee vested either in George, if he was living, or, if dead, then in his heirs, if he left any, or, in the event of his death without heirs, in the persons-named in the third clause of the will. This being so, it follows that *960by no course of reasoning can the suspension be said to extend beyond “two lives in being at the creation of the estate.” The construction to be given to the third clause of the will appears equally clear. The condition which was to defeat the estate of George Sheldon in the premises of the testatrix was his “death without heirs before the death of said Henry and Chauncey L. Sheldon.” It has been shown that it was the intention of the testatrix to create by her will a life estate in her husband and brother, and to make an absolute disposition of her property upon its termination. If George survived the life tenants, he was to become the absolute owner of the fee, but if he did not,—that is, if he died during the continuance of the life tenancy,—then the fee was to vest elsewhere. He did die before the life estate terminated, although it was subsequent to the death of Henry,, one of the life tenants, and he left no heirs. That this was the fulfillment of the condition which the testatrix designed should defeat his estate seems too clear to admit of argument. He certainly had no interest in his mother’s estate when he assumed to convey the same to the plaintiff, and, as Chauncey L. Sheldon survived him, the defendants, or the parties from whom they derived their title, took the absolute fee of the estate upon the death of the last-named person.

The defendants are therefore entitled to judgment, with costs. All concur.