Opinion
January, 1936.
Appeal from Supreme Court, Otsego County.
This is an appeal from the dismissal of a complaint in a partition action. The issue involved is the question of the vesting of the remainder under the fourth clause of the will of Menzo Hoke, Sr., which gave the life use to his daughter in eighty-three acres of land and provided that upon her death it should go to her child or her children should she leave any surviving, but if she did not leave any child or children her surviving he gave the eighty-three acres of land to the heirs at law of his son Menzo Hoke, Jr. At the time of the making of the will and the death of Menzo Hoke, Sr., Menzo Hoke, Jr., had one son fourteen years old, who with his father was a part of the family of the testator.
The life tenant died without ever having any children. The appellant contends that the heirs at law of Menzo Hoke, Jr., were to be determined at the time of the death of the life tenant, Flora Mallory. The respondents contend that under the provisions of the will of Menzo Hoke, Sr., Earl Hoke, upon the death of Menzo Hoke, Sr., took the vested remainder in the premises in question subject to being divested upon Flora Mallory's death leaving children and subject to being opened up and partially divested in the event that Menzo Hoke, Jr., had children other than Earl.
The court has found as a conclusion of law the contention of the respondents. The finding is supported by the evidence and the law applicable thereto.
Judgment affirmed, with costs.
Hill, P.J., Crapser, Bliss and Heffernan, JJ., concur; Rhodes, J., concurs, in a memorandum.
I concur in the result, but for a different reason from that expressed in the opinion of the learned court below ( 156 Misc. 494), which reasoning has been adopted by a majority of this court.
The court below concluded that under the provisions of the fourth paragraph of the will, Earl Hoke, upon the death of the testator, became vested with the remainder upon the termination of the life estate of Flora Mallory, subject to being divested in the event that Flora Mallory died leaving a child or children.
The heirs at law of Menzo Hoke, Jr., could not be determined until his death. He died intestate in 1901, leaving his son Earl his only child and heir. The contingent interest then vested in Earl and was descendible, devisable and alienable, although it did not ripen into a right to the possession, enjoyment and fee absolute until the death of Flora Mallory. (See Moore v. Littel, 41 N.Y. 66; Hennessy v. Patterson, 85 id. 91; Clowe v. Seavey, 208 id. 496; Sheridan v. House, 4 Keyes, 569; Matter of Chalmers, 264 N.Y. 239.)