#### TROLAN v. ROGERS.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

1. Wills—-Construction—Life Estate.

Testator gave the use of all his property to his'widow for life, “and, after her decease, to go and be divided equally between my son, Julius, and my daughter, Julia, to have, possess, and enjoy the same during their and each of their natural lives, and, after their decease, to their children.” *Held,*that it was the intention of testator to give his son and daughter a life estate each in half of his property after his widow’s death.

& Same—Perpetuities.

In such case, there is not an unlawful suspension of power of alienation of the real estate.

Appeal from circuit court, Jefferson county.

Action by John C. Troian against Leroy S. Rogers. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Reversed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

John C. Trolan and Henry Purcell, for appellant

Watson M. Rogers, for respondent.

HARDIN, P. J.

William Gill, on the 2d of January, 1857, died testate, leaving his widow, Hannah, his daughter, Julia, and his son, Julius, him surviving. He left a will containing the following clause, viz.:

> “I also hereby give, bequeath, and devise the use and enjoyment of the rest, residue, and remainder of my real estate and personal estate, of every name, kind, and description whatsoever, to my said wife, Hannah, to have, possess, hold, and enjoy the same during her natural life, and after her decease to go and be divided equally between my son, Julius, and my daughter, Julia, to have, possess, and enjoy the same during their, and each of their, natural lives, and after their decease to their children and heirs at law in fee simple; but if my son, Julius, or my daughter, Julia, should die before. the decease of my said wife, then and in that case their children and heirs at law to take and hold what their parent, if living, would be entitled to under this, my will.”

His will was duly admitted to probate by the surrogate of Jefferson county. He was the owner in fee of the lands mentioned in the complaint. Subsequent to the probate of the will, and on the 23d of May, 1857, the widow and the two children executed quitclaim deeds to effectuate a division or partition of the testator’s real property. Of the lands covered by the deed executed by the widow and son to the daughter, Julia, she conveyed, April 8, 1875, the lands mentioned in the complaint to the defendant, in con*900sideration of $700, which deed was put on record, and defendant entered into possession of the lands so conveyed to him. Subsequently, on May 21, 1881, the daughter, Julia, died intestate, leaving, her surviving, four children; and Ada E., one of them, was married May 20, 1875, to the plaintiff, and she died February 2, 1884, leaving, her surviving, two children, the issue of such marriage to the plaintiff. The plaintiff claims that his wife, Ada, upon the death of her mother, was entitled to one-fourth of the property which was set off to the mother under the will of William GiU, deceased. We think the intention of the testator was to give to his widow a life estate in his property, and that upon her death it was his intention that his son and daughter should each have the use of one-half thereof during life. The words found in the will, viz. “to go and to be divided equally between my son, Julius, and my daughter, Julia, to have, possess, and enjoy the same during their, and each of their, natural lives,” seem appropriate to evince an intention that there should be a division between Julius and Julia of the estate, and that each should have the use during life of one-half of the estate, and that upon the close of the life of the son his half should go to his children, and that upon the close of Julia’s life her half should pass in fee to her children. The will provides, in effect, that the widow shall enjoy the use of the estate during her natural life, and that thereafter the son shall have the use of one-half for his life, and the daughter one-half, for and during her natural life. We think there was no unlawful suspension of the title to the real estate. Everitt v. Everitt, 29 N. Y. 40; Moore v. Hegeman, 72 N. Y. 377; Monarque v. Monarque, 80 N. Y. 321; Wells v. Wells, 88 N. Y. 323; In re Blaker, 12 N. Y. St. R. 741. “Each one of these shares is separately disposed of, and therefore the provision in question is to be considered as if a disposition had been made of an estate in an entirety.” The whole estate is bound during the life of the widow, and after her death each of the testator’s children takes, in severalty, one-half of the estate for life; and, the fee having vested in the grandchildren at testator’s death, the possession of such half passes at the close of the lives of the life tenants to the. children of the son or daughter, so that they take “what their parent, if living, would be entitled to.” Schermerhorn v. (Dotting, 131 N. Y. 55, 29 N. E. 980. The testator expressly provides that his son and daughter shall have the use, during his or her natural life, of the onehalf, and that thereafter the children and heirs at law shall take “in fee simple.” The daughter, Julia, having only a life estate by the terms of the will, could convey that, and no more, to the defendant. At the close of her life her children became entitled to the possession of the one-half of the testator’s estate, of which she was given the use for life. As her death took place during the coverture of the daughter Ada, she was entitled to immediate possession of an undivided interest in the estate of the testator, and that right accrued to her during coverture. By the death of Hannah, the testator’s widow, on October 20, 1875, her life estate terminated. Inasmuch as both life tenants died during coverture of plaintiff’s wife, she had an absolute estate during her lifetime. Her seizure was-*901perfect at the close of her mother’s life, which occurred in 1881. 1 Washb. Real Prop. p. 160, § 28; Dunham v. Osborn, 1 Paige, 634; Ex parte Creiger, 1 Barb. Ch. 598; Tayloe v. Gould, 10 Barb. 401; Durando v. Durando, 23 N. Y. 331; Ferguson v. Tweedy, 43 N. Y. 543; Hurd v. Cass, 9 Barb. 367; Clark v. Clark, 24 Barb. 581; Hatfield v. Sneden, 54 N. Y. 280. The possession of the defendant under his deed, taken April 8, 1875, has not been such as to ripen into a title; and the case does not fall within the rule laid down in Baker v. Oakwood, 49 Hun, 416, 3 N. Y. Supp. 570.

When the trial was near its close, it seems the letter of plaintiff to defendant had not been produced, and read to the court, though it was assumed that such letter had been sent before suit brought, and it now appears in the case, and the plaintiff requested the court to hold:

> “If it appears from the letter referred to that a sufficient demand was made of defendant for possession prior to the commencement of the action, plaintiff is entitled to maintain the suit as a tenant in common after an ouster or eviction; defendant claiming to hold adversely to plaintiff, her cotenant”

This request was overruled, and an exception taken. The complaint was amended so that it averred a demand by the plaintiff of possession of the premises before commencement of the action, and a refusal by the plaintiff. When the ruling was made it appeared that the defendant had, by his answer, denied the plaintiff’s title, and claimed to be in possession adversely to the plaintiff’s title or interest, claiming to hold the premises as his own, and that the defendant wholly denied the title and right of the plaintiff. His acts and declarations “are inconsistent with the supposition that he acquired and now holds possession of the premises as tenant in common with the plaintiff.” Edwards v. Bishop, 4 N. Y. 65; Valentine v. Northrop, 12 Wend. 495; Code Civ. Proc. §§ 1500, 1515; Earnshaw v. Myers (Sup.) 1 N. Y. Supp. 901. The views already stated lead us to order a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.