Griffin v. Shepard

47 N.Y. Sup. Ct. 355

• Court: New York Supreme Court
• Decided: May 15, 1886
• Status: Published

Opinion

Barnard, P. J.:

Tbe title to tbe premises in question by tbe will of Stephen Griffin, deceased, was as follows: Joseph Griffin, a son, took an equal undivided third absolutely. John 0. Griffin took another third absolutely. Tbe remaining third went to John 0. Griffin, if he survived his wife Deborah L. Griffin, or if John 0. Griffin had a child which reached twenty-one years of age. If not, this remaining third went to Joseph Griffin.

John did not survive his wife and did not have a child which became of age. Each of two children had a third and one of them would get the other third upon the happening of a contingency in the future; John C. Griffin, until the happening of the contingency, was vested with the possession of the third, depending upon the contingency until it should go absolutely to one or the other of the brothers, as ascertained by the event. The question is whether the interest of Joseph Griffin could be released in this third part of the estate depending upon the condition named. By our statute expectant estates are descendable, devisable and alienable in the same manner as estates in possession. (1 R. S., 725, § 35.) Such estates are defined to be estates commencing at a future day and reversionary. (1 R. S., 718, § 9.) Did Joseph Griffin have an expectant estate in the land ? The question as to remainders, whether vested or not, has been the subject of much discussion from early times. There seem to be no words which can, in the way of description, meet all or even a considerable portion of the cases discussed ana aecided in the reports. The tendency has been to vest an estate when, it was fairly to be done. Our statute was an advance and the cases of Moore v. Littel (41 N. Y., 66) and Miller v. Emans (19 id., 384) seem to be adjudications under it that sustains the right of Joseph Griffin to convey his interest in the expectant estate.

In Miller v. Emans there was a devise in equal shares with a provision that if one of the devisees died without children the survivor, should take the share equally. In the case of Moore v. Littel lands were deeded to John Jackson for life, and after his death to his heirs and their assigns forever. In both these cases the Court of Appeals held that the estate in expectancy and subsequent to the life estate was assignable. It could not be supported, by any case, that Joseph Griffin’s children would not inherit this interest, in the absence of a will, if Joseph Griffin had died before the contingency happened which gave him the land. Such an heir would take by the will of the deceased Stephen Griffin. The case is not one where Joseph Griffin is divested by his death. The estate goes as the will directs at the happening of the contingency, and whether the children are alive or dead. Both contingency and persons who are to take upon the event are certain, and the only uncertainty is whether John 0. Griffin shall outlive his wife or not, without leaving by her a child of the age of twenty-one years. My conclusion is, therefore, that the deed from Joseph Griffin was good and operative and conveyed the title dependent upon the condition.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.

Pnatt, J., concurred; DyemaN, J., not sitting.

Judgment reversed, and new trial granted, costs to abide event.