In re Young

• Decision Date: 04 March 1926
• Citation: 242 N.Y. 237,151 N.E. 218
• Parties: In re YOUNG.
• Court: New York Court of Appeals Court of Appeals

242 N.Y. 237

151 N.E. 218

In re YOUNG.

Court of Appeals of New York.

March 4, 1926.

Application by William Henry Young for an order authorizing the sale of real property pursuant to Real Property Law, §§ 67, 68, and 69. From an order of the Appellate Division (213 N. Y. S. 941, 215 App. Div. 780), affirming an order denying a motion by John S. Jenkins to be relieved from purchase of real estate, movant appeals.

Orders reversed, and motion granted.

Appeal from Supreme Court, Appellate Division, Second department.

Frank C. Barker, of Mattiluck, for appellant.

Harry C. Miller, of New York City, for respondent.

ANDREWS, J.

The testator devised certain real estate to his nephew, William H. Young, for life with remainder to his surviving children and to the issue of deceased children per stirpes. If, however, this nephew left no descendants, then to the grandnephews of the testator, G. L. Forman and C. E. B. Forman, in equal shares for life with remainder to their children.

The question before us is whether upon the petition of the original life tenant proper title may be conveyed under an order for the sale of premises made, however, without noticeto the two Formans or to their children if any such there are. If not, the order appealed from must be reversed.

Where real property is devised to one for life, with a contingent remainder to persons whose identity cannot be definitely fixed until the death of the life tenant, the court may authorize its sale whether any of the persons who may eventually be entitled to the remainder are or are not in existence, but notice of such a proceeding must first be given to the life tenant and to ‘every other person in being having an estate or interest, vested or contingent, in reversion or remainder, in said real property * * * provided that where a future estate or interest is limited in any contingency to persons who shall compose a certain class upon the happening of a future event, it shall be sufficient if such notice be served upon the persons who would have been entitled to such estate or interest if such event had happened immediately before the application is made.’ Real Prop. Law (Cons. Laws, c. 50) § 67.

The meaning of this provision seems reasonably clear. The children of William H. Young and their issue were a class. Had this remainder after his death been limited to them, it would have been sufficient to have given notice, as was in fact done, to the living members of that class....