Peckham, J. - * * * I see no objection to the merger of this life-estate of John Jackson, the father, in the vested remainder of his son, the husband of Mary L. Jackson, under the decision of Moore v. Lit/el, 41 N. Y. 66. This is a part of the same estate there adjudged. If the son should die in the lifetime of the father, I think the better opinion is that the estates divide again and the widow is then not entitled to dower.
Moore v. Littel, holds the estate of the son, prior to the death of the father, to be a vested remainder; the son was also seised in fact and in law of his father's life-estate, and then became seised of the inheritance, subject to being defeated by his own death, prior to the decease of his father. In such case I think the wife has dower, subject to being defeated by the same means. The plaintiff claims that the sale of the son's life-estate upon execution cut off his title.
It is a settled rule of the common law, laid down in the elementary books, that after dower has once attached, it cannot be extinguished or suspended by any act of the husband alone, in the nature of alienage or charge. Park, 191.
The rule is adopted in much broader language in our statute. I R. S. 742, § 16.
At common law there might have been an intermediate estate for years and yet the wife had dower - as estates for years were not highly regarded at common law. But cessit executio during the term. Com. Dig. Dower, A. 6; Perk. § 336.
So, if there be a mesne remainder for life, who surrenders his estate to the tenant for life (Id.), though the surrender be upon condition, for the estate is gone until the condition be broken. Id.
In this case there is no intervening estate. The husband is seised of the life-estate in fact and in law, and he is also seised of a vested remainder as adjudged, subject to be defeated of the remainder by his death prior to that of his father.
This is such a seisin as prevents the alienation of the estate or its incumbrance, to the prejudice of the wife's dower. In other words, dower attaches to such an estate, subject to be defeated as above stated, and as the husband survived the father, his dower becomes absolute. The decree must be modified according to these views, with costs to her - no costs to either of the others, and the cause remitted for further proceedings.1
43 New York, 346. - 1868.
Clerke, J. - Daniel Carmichael died September 3d, 1849, leaving the defendant, his widow, and six children, him surviving. The eldest of them (Otis) was the child of a first marriage. He did not live with his father, but lived in Middletown, in this State, where his father provided for him. At the time of his father's death he was an invalid, and he died about two years afterward. He married the plaintiff soon after his father's death, the engagement having been made prior to that event; he left one child. Daniel Carmichael, shortly previous to his death, made a will, of which the following is a copy: | The matt-rial part only is given here.]
"After the payment of all my debts, I give, devise and bequeath all and singular my estate and property, of whatsoever kind, and wheresoever the same may be situate, unto my belowed wife Eliza, for and during the term of her natural life; and from and after her decease, then I give, devise and bequeath the same unto my children, who may be then living, in equal parts, share and share alike - it being distinctly understood that the part or share of my son, Otis Carmichael, under said division or appropriation, shall be held and invested by my surviving executor, his heirs and assigns, in trust, to keep the same well and securely invested during the lifetime of my said son, and to pay over to him, my said son, the rents, income and interest thereof as received, and to dispose of and apply the principal of said share as my said son may by his last will and testament, or any instrument in the nature thereof, direct, limit and appoint. And in default of such direction, then to the right heirs of my said son, under the intestate laws of New York." * * *
1 Sec also Mead v. Mitchell, 17 N. V. 210; Minot v. Minot, 17 App. Div (N. Y.) 521; Lawrence v. Bayard, 7 Paige Ch. 70; Coster v. Lorillard, 14 Wend. 310. In the last named case the judge boldly declares such a remainder both vested and contingent. See also discussion of this subject in Chaplin on Suspension of the Power of Alienation, §§ 28-52, and Gray's Rule Against Perpetuities, §§ 104 - 108. - Ed.
This will was admitted to probate on or about the 15th of October, 1849, before the surrogate of the county of Broome. Otis Carmichael, previous to his death, made a will, by which he gave to his wife (the plaintiff) the annual sum of $500 during her natural life; and he further gave unto her, in trust, for the maintenance and education of his son, all the annual proceeds of his real and personal property, until his son should attain the age of twenty-one years. He secondly devised and bequeathed unto his son, all his real and personal property, subject to the annual payments given to his wife.
This action is brought by the widow of Otis, for the purpose of compelling the defendant, executrix of the will of Daniel Carmichael, to render an account of his property and effects, which may have come into her hands as such executrix; and, after the accounting, it is prayed that the same may be divided, and that the defendant be adjudged to pay over to the plaintiff, one-sixth part of the estate of Daniel Carmichael, with interest thereon from January 1, 1850.
The defendant demurred to the complaint, upon the ground, first, that the plaintiff had no legal capacity to sue, and, second, that the complaint does not state facts sufficient to constitute a cause of action.
The demurrer was sustained, both at the Special and General Term.
The demurrer was properly sustained. The widow of Daniel Carmichael is living, and, by the express provision of his will, she is entitled to all the use and enjoyment of his property during the term of her natural life; and she is under no obligation to account to any of the children, for the purpose of having it divided among them. The estate does not vest in remainder until her death; and then it vests only in those children who shall be living at the time of her death. The plaintiff, under the will of Otis Carmichael, acquired no estate or interest in the property of Daniel Carmichael, and has, in fact no standing in court.