Viele v. Keeler

• Decision Date: 01 December 1891
• Citation: 129 N.Y. 190,29 N.E. 78
• Parties: VIELE v. KEELER.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 190

29 N.E. 78

VIELE

v.KEELER.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from supreme court, general term, third department. Reversed.

This was an action by Maurice E. Viele against William H. Keeler for the specific performance of a contract for the purchase of real estate. There was judgment for defendant, and plaintiff appeals.

S. O. Shepard, for appellant.

Isaac Lawson, for respondent.

O'BRIEN, J.

On the 10th day of July, 1890, the plaintiff, by an instrument in writting, agreed to convey, and the defendant to purchase, for the sum of $15,000, the undivided half of certain real estate situated in the city of Albany, and particularly described in the record. The plaintiff stipulated on his part to execute and deliver to the defendant, on or before the 1st day of September thereafter, a warranty deed of the premises, with the usual full covenants, which would be sufficient to vest in the defendant an estate in fee-simple absolute, free and clear of all liens and incumbrances. Within the time provided in the agreement the plaintiff duly executed, acknowledged, and tendered to the defendant a warranty deed of the premises described in the agreement, which contained all the usual full covenants, but the defendant refused to accept it, on the ground that the plaintiff was not the owner of the land described therein in fee-simple absolute, and that the deed would not vest title in the defendant. The plaintiff claimed that the defendant was bound to specifically perform his part of the contract, and the controversy was submitted upon an agreed case to the general term, where judgment was directed for the defendant. The only title which the plaintiff had was derived from his wife, Maria Viele, who died in the month of December, 1889, having duly executed her will, which was admitted to probate in the surrogate's court of Albany county, in and by which she devised the land in question to her husband, the plaintiff. Mrs. Viele was a daughter of Charles D. Townsend, who, it is admitted, was, in his life-time, seised of an estate in the lands in question in fee-simple absolute. The controversy is narrowed down to the question whether Mrs. Viele took, under her father's will, an estate for life or in fee. Charles D. Townsend died in Albany in the month of January, 1848, the owner in fee-simple of the lot of land described in the contract. He left surviving one son and three daughters, his only children and heirs at law, of whom Mrs. Viele was one. He left a will dated January 28, 1836, and two codicils, all of which were admitted to probate in Albany county. The title of Mrs. Viele depends upon the construction to be given to these instruments. The executors were directed to proceed immediately after taking an inventory to collect all outstanding debts, except such as they deemed properly secured or invested, and out of such debts and the rents and issues of the estate to pay all the debts of the deceased. After the payment of debts the executors were directed to divide the estate into four equal parts. One of these parts the testator gave absolutely to his son John F. Townsend. The other three equal parts were disposed of in the following language: ‘I do give and bequeath the remaining three equal parts of the said division, being three-fourths of my estate as above mentioned, unto my said executor or executors who shall consent to act, or may survive, or, in case of their refusal, incompetency, or inability thus to act, then to such person or persons as they shall name, or, in case of their refusal to make such choice, then to such person or persons as the chancellor shall appoint, to have and to hold the said three equal parts of the said division in trust, and for the use of my daughters, Helena D. Townsend, Maria Townsend, and Sarah Townsend, severally setting apart to them each one of the said equal parts of the aforesaid division, and to their respective names, and thus continue to hold each of said several parts to her use to whom it shall have been assigned, until she shall arrive at the age of twenty-one years; and they shall insure and constantly keep insured the several house or houses in the name of such one of my said daughters to whom they may assign them; and pay all assessments or taxes or charges thereon, or such other of my real property as they shall assign them as above directed; and shall also rein vest in their several names, in safe securities, all moneys which may be paid in on the securities apportioned to them as aforesaid, and shall charge the expense thereof to the share of that one to whom they shall have been apportioned as above, and, after deducting such, and all incidental expenses, shall apply (if required) all the income of said several portions to the respective use, maintenance, and education of said daughter to whom the share whence it shall have been derived belongs. And the surplus over such necessary expenditures they shall invest, as above directed, in the name and for the use of such one of my daughters to whom the share has been apportioned as above, producing said income; and this my said executors or executor are required to do for my said daughters respectively until they shall severally arrive at the age of twenty-one years. But in case the aforesaid rents and income of any one share shall, in the consideration of my aforesaid executors or executor, be insufficient for the education and maintenance of my daughter to whom such share shall have been thus assigned, suitable to her condition, whether married or single, then they are authorized to make to her such advances, from time to time, out of the principal of her said share, as in their discretion they may deem prudent and needful; and each of my said daughters, after they shall respectively have arrived at the age of twenty-one years, are severally required, as my executors are directed, constantly to insure and keep insured the house or houses, and to pay all assessments and taxes thereon, and on all other real property severally apportioned to them, and to invest and keep invested all moneys and securities belonging to her share as above mentioned, and to receive and appropriate to her own several use and enjoyment, independent of her husband, if married, during her natural life, the net income and rents accruing therefrom, and for the better management thereof to appoint an attorney or agent or trustee, and by her own act and deed separately to account and settle with him and them therefor; and at and after the event of her death her aforesaid...