Opinion
June, 1923.
Present — Kelly, P.J., Rich, Jaycox, Kelby and Young, JJ.
Judgment unanimously directed for defendants, pursuant to the stipulation on the submission of the controversy on agreed statement of facts, without costs. The fee devised to Julia A. and Elizabeth A. Lane by the 4th paragraph of the will of their deceased sister, Caroline Lane, was cut down by the subsequent provisions of the same paragraph of the will. In the event of the marriage of either devisee, "her share" was given "to the remaining unmarried one for her life, then to be divided equally, among the surviving sisters." Many possible contingencies are not provided for in the will. There is no provision as to where the title goes in the event of the death of the sole remaining sister, Emma L. Smith, before the death of either or both of the devisees, Julia A. and Elizabeth A. Lane. Nor is any disposition made to meet the possible contingency of the marriage of both devisees. Under the circumstances, the title to the premises in suit is in doubt, and it would not be just to compel the defendants to take such a title. There are possible contingencies that might involve defendants in future litigation with persons not parties to this action.
Settle order on notice.