Eyclesheimer v. Hunter

162 A.D. 643, 13 Mills Surr. 145, 147 N.Y.S. 958, 1914 N.Y. App. Div. LEXIS 6083

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1914
• Status: Published

Opinion

Per Curiam:

This is a submitted controversy wherein plaintiff seeks specific performance of contract for the conveyance of realty. The sole question of law is whether the remainders constituted in the will of Peter D. Eyclesheimer are vested or contingent. The provision up for construction reads as follows: “I, Peter D. Eyclesheimer of Winter Haven Polk County and State of Florida, a farmer being of a sound mind, make this my last will. I give devise and bequeath my estate and property, real and personal that is or may be now or shall hereafter come to be mine before or after my death to my beloved wife Anna T. Eyclesheimer for her own use and benefit as long as she shall live after which time it shall be equally divided, share and share alike between our two children Clarence M. Eyclesheimer and Mrs. C. F. Greenwood — nee— Hattie Eyclesheimer or their heirs.” The testator was and always had been a farmer, of no legal education or experience, and personally drew the will without legal advice.

We think that the remainders are vested. The expression “ or their heirs ” is to he construed with reference to the death of the testator. (Moore v. Lyons, 25 Wend. 119; Connelly v. O’Brien, 166 N. Y. 406; Hersee v. Simpson, 154 id. 496; Stokes v. Weston, 142 id. 433; Campbell v. Stokes, Id. 23; Lewis v. Howe, 174 id. 340, 346; Riker v. Gwynne, 201 id. 150; Miller v. Gilbert, 144 id. 68.) The defendant should be required to perform. (Ebling v. Dreyer, 149 N. Y. 460.)

The judgment should he in favor of the plaintiff, without costs, in accord with the terms of the submission.

Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

Judgment for plaintiff, without costs, in accord with the terms of the submission.