Fowler v. Ingersoll

• Decision Date: 06 October 1891
• Parties: FOWLER et al. v. INGERSOLL et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 472

28 N.E. 471

FOWLER et al.

v.INGERSOLL et al.

Court of Appeals of New York,

Second Division.

Oct. 6, 1891.

Appeal by defendants from an order of the general term of the first judicial department which reversed a judgment in favor of the plaintiffs entered upon the decision of the court without a jury, and ordered a new trial. Affirmed.

C. E. Rushmore, for appellants.

Isaac N. Miller, for respondents.

BROWN, J.

This action was in ejectment for the possession of two lots of land on Twentieth street in New York city. The complaint alleged that John B. Fowler died December 5, 1885, seised of the premises in question, which allegation was denied by the answer. It appeared that prior to November 24, 1883, Mr. Fowler owned and occupied said premises, and upon that day, by a sufficient deed, conveyed the same to his only daughter, Mary E. Henry. Mrs. Henry died prior to the death of her father, leaving no husband or children surviving her, and leaving a will which was duly admitted to probate May 2, 1885. John B. Fowler died December 5, 1885, leaving the plaintiffs as his heirs at law. Mrs. Henry's will contained the following provisions: ‘ Third. I hereby direct my executor to keep my real estate in West Twentieth street, conveyed to me by my father, John B. Fowler, * * * in good order, repair, and condition, and to that end * * * I direct that the sum of four hundred dollars a year be set aside, and kept and expended for such purpose. Fourth. After making the reservation for the repairs provided for in the last preceding clause, and after paying all the taxes, assessments, water-rates, and insurance on said real estate, and out of the remaining net proceeds my executor shall pay one hundred dollars a year to my cousin Mary Ingersoll for and during her natural life, also fifty dollars a year to each of my cousins Ada Ingersoll and Grace E. Ingersoll during their natural lives,’ etc. ‘ Ninth. * * * The remainder of my property [and this included the property in question] I will and devise as is hereinafter mentioned and provided, and I then appoint (my husband being dead) Ada Ingersoll and Mary Ingersoll executrices of this my last will and testament, and after provision shall be made for the payment of taxes, assessments, and repairs as provided for in the preceding clauses of this will, then said net income from said New York city property shall be disposed of as follows: Ten percent, of the amount of rents collected shall be paid to Ada Ingersoll as and for her trouble and commissions for collecting said rents. The said Ada Ingersoll is to have the sole supervision of collecting the rents, and of the care and management of the property, and said Ada shall be entitled to use one-fourth of the remainder of the net rents received, which shall be in lieu of all commissions as executrix of this will. Three-eighths of the remainder of said net rents shall be paid to Mary Ingersoll, which shall also be in lieu of any commission that she might be entitled to as executrix of this will, and the remaining three-eighths of said net rents shall be paid over to Grace E. Ingersoll. Tenth. In case either of said cousins shall die, the share of the rents of such one or more dying shall be paid over to the survivors for life. Eleventh. Upon the death of said cousins, one-third of my real estate shall go to the children of Mary Ingersoll, one-third to the children of Ada Ingersoll, and the remaining one-third to the children of Grace E. Ingersoll, and, should either of said cousins die without children, then the share of such cousin dying shall go to the children of the survivor.’ By other provisions of the will the executrices were empowered and authorized to sell said real estate during the existence of the life-estate, provided the supreme court, upon petition made to it, should permit and direct such sale to be made, and in the event of a sale the proceeds thereof were directed to be invested, and the income disposed of in the same manner as was directed as to the rents, and the principal in the same manner as was directed as to the land. The plaintiffs contend that the effect of the provisions of the will just quoted was to suspend the power of alienation of the land, and the absolute ownership of the proceeds of a sale thereof, for more than two lives in being at the death of the testatrix, and that consequently such provisions were void, and that upon the death of Mrs. Henry the title to the land in question vested in her father, John B. Fowler, as her only heir at law, and upon his death passed to the plaintiffs as his heirs at law; and the determination of this appeal rests upon the solution of the question thus presented.

The effect of the provisions of the will quoted was to vest the legal estate in Ada Ingersoll in trust- First, to set aside $400 annually for repairs upon the property; second, to pay taxes, assessments, waterrates, and insurance; third, after deducting 10 per cent. of the amount of rents collected as commission, to divide the balance as follows: One-fourth to Ada, and three-eighths to Mary and Grace, respectively. The trust thus created was to continue during the life-time of the three cousins, and upon the death of either the share of the rents of the one so dying was to be paid over to the survivors, and the estate was not to vest in the children of the testatrix's cousins until the death...