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BLUMENAUER v. RICHELSON.

(Supreme Court, Appellate Division, Third Department. January 14, 1927.)

Landlord and tenant 294-Court in summary proceedings cannot determine title or declare tenant's deed a mortgage, tenant's remedy being in court of equity (Civil Practice Act, § 1425 [added by Laws 1921, c. 199, and amended by Laws 1924, c. 514]; § 1445 [added by Laws 1921, c. 199]).

Though, under Civil Practice Act, § 1425 (added by Laws 1921, c. 199, and amended by Laws 1924, c. 514), tenant in answer may interpose claim of equitable title, court has no jurisdiction, in summary proceedings to dispossess tenant, to adjust equities between parties and award title to one or other, or declare deed to be mortgage; remedy of tenant claiming equitable title being in court of equity, and under section 1445 (added by Laws 1921, c. 199), such remedy is not barred by final order in favor of landlord.

Appeal from Sullivan County Court.

Summary proceeding by David E. Blumenauer against Joseph Richelson. From an order determining that defendant was tenant of plaintiff, and that defendant deliver possession of property described in petition, defendant appeals. Affirmed.

Argued before COCHRANE, P. J., and VAN KIRK, HINMAN, MCCANN, and DAVIS, JJ.

Morris Kanfer, of Woodridge (William D. Cunningham, of Ellenville, of counsel), for appellant.

John D. Lyons, of Monticello (Nellie Childs Smith, of Monticello, of counsel), for respondent.

PER CURIAM. The respondent instituted summary proceedings to remove the appellant, who it was claimed was a tenant holding over after due notice to quit. The answer set up an alleged equitable title to the premises in defendant. The relation of the parties to the premises in question appear to be as follows: The defendant originally owned them, and had given a mortgage thereon. This mortgage was foreclosed in December, 1924. On the sale the respondent became the purchaser, receiving the referee's deed December 31.

The appellant claims that there was an agreement made prior to the sale between himself and respondent to the effect that the latter would bid off the property for him and that he would give a mortgage for $8,000 to respondent. He claims respondent has refused to carry out this agreement. The latter, admitting that there was originally some agreement of this kind, claims the appellant has failed to perform it on

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(219 N.Y.S.)

his part, and has expressly surrendered any equitable claim, and, further, while continuing to occupy the premises, appellant agreed with him to pay rent at the rate of $50 a month and to become a tenant from month to month.

Though the Civil Practice Act now permits a tenant to interpose in his answer a claim of equitable title (section 1425 [added by Laws 1921, c. 199, and amended by Laws 1924, c. 514]), there is no jurisdiction in the court in summary proceedings to adjust the equities between the par. ties and make decrees awarding title to one or the other, or declaring a deed to be in fact a mortgage. Hoffman v. Hoffman, 212 App. Div. 531, 533, 208 N. Y. S. 734. If appellant has any just ground upon which to impeach the respondent's deed, he should seek his remedy in a court of equity, and not in a proceeding of this nature.

He has already been tardy in that respect, and that the opportunity may still be open to him, without the risk of being confronted with a prior adjudication of the question of equitable title, in affirming, we limit the decision to the single question that the defendant had agreed to pay rent as a tenant from month to month at the time the proceeding was instituted, and was given due notice to quit. See section 1445, C. P. A., added by Laws 1921, c. 199. The order, as thus limited, should be affirmed, with costs.

Order affirmed, in accordance with opinion, with costs.

VAN KIRK, HINMAN, MCCANN, and DAVIS, JJ., concur.
COCHRANE, P. J., not voting.

(128 Misc. Rep. 582)

In re WATERBURY TRUST CO.

In re BURDSALL'S WILL.

(Surrogate's Court, Westchester County. January 28, 1927.)

1. Wills 555(4)—Words giving property to lineal descendants of remaindermen predeceasing testatrix or life beneficiary held words of substitution.

Under will directing that, on life tenant's death, trust fund be given to testatrix's two cousins, share and share alike, absolutely, and on death of either before death of testatrix or of life tenant her share to go to her lineal descendants, held, that words of gift to lineal descendants were words of substitution.

2. Wills 687(2)—Under will providing gift over of shares of remaindermen dying before life tenant, interest of remaindermen was defeasible. Under will directing that, on life tenant's death, trust fund be given to testatrix's cousins, share and share alike, absolutely, and, on death of either before death of testatrix or of life tenant, her share to go to her lineal descendants, held, that interest of cousins did not become indefeasible while life tenant was living, and was subject to be divested by their death before that of life tenant.

3. Wills 634(8)—Death referred to in gift effective on termination of intervening life estates, with substitution in case of death, is death prior to termination of life estates.

Where gift of property is made to take effect in future on termination of intervening life estates, with substituted gift to others in case of death, the death referred to will be held to be death at any time prior to termination of life estates.

4. Wills 524 (6)-Substituted gift to class ascertainable at life beneficiary's death tends to show intent to give only to those living when class is ascertained.

That substituted gift is to a class of persons designated by description, who are to be ascertained at death of life beneficiary, in itself tends to show that testatrix meant to give only to those who were living when class was to be ascertained.

5. Wills

524(6)—Provision for substituted gift held to indicate intent to make survivorship at time of distribution test of right to participate in fund.

That substituted gift to class designated by description is to be ascertained at death of life tenant indicates intent to make survivorship at time of distribution a test to participate therein.

6. Wills 458-Words construed as making substituted gift to lineal heirs of remainderman will be construed likewise respecting other remainder

man.

Words of will giving substituted gift to lineal heirs of one remainderman will be construed in same way as respects other remainderman, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(219 N. Y.S.)

notwithstanding latter was known to testatrix to be 62 years old and unmarried at time of execution of will.

7. Wills 440-Testatrix's intent, ascertainable from language of will, controls construction.

Testatrix's intention, if ascertainable from language of will, must control construction thereof.

8. Wills 524 (2)—In absence of contrary ascertainable intent, intestate property passes to heirs or next of kin as of testatrix's death.

In absence of contrary ascertainable intent of testatrix, rule that, where any part of estate passes to heirs at law or next of kin because of intestacy, heirs at law and next of kin are to be determined as of date of testatrix's death, applies.

9. Wills

524 (2)—Under will giving substituted gift to remainderman's lineal heirs, remainder interest of 62 year old unmarried lady passed as intestate property to testatrix's next of kin as of testatrix's death (Decedent Estate Law, § 98, subd. 5).

Under will directing that, on life tenant's death, trust fund be given to testatrix's cousins, share and share alike, absolutely, and, on death of either before death of testatrix or of life tenant, her share to go to her lineal descendants, held that, in view of Decedent Estate Law, § 98, subd. 5, on death of remainderman known to testatrix to be 62 years old and unmarried when will was executed, her share passed as intestate property to testatrix's next of kin living at testatrix's death.

10. Remainders 6-Life tenant may have vested interest in remainder. Life tenant under will may have vested interest in portion of remainder.

In the matter of the judicial settlement of the account of the Waterbury Trust Company, as executor of the last will and testament of Charles L. Holmes, original trustee named in the last will and testament of Henry S. Seeley, successor trustee named in the last will and testament of Margaret Wilmarth Burdsall, deceased, involving construction of the will. Will construed.

Davis, Wagner, Heater & Holton, of New York City, for petitioner. Albert Woodruff Gray, of New York City, for Herbert A. Shipman and another.

Seacord, Ritchie & Young, of New York City, for Carrie W. Hall, and others.

SLATER, S. Upon this accounting a construction of the will is required. The last will and testament of the testatrix was admitted to probate May 29, 1917. The question involved is found in article third, which is as follows:

"All the rest, residue and remainder of my property and estate of whatever nature and wheresoever situated, I give, devise and bequeath to Charles

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

L. Holmes, of Waterbury, county of New Haven, state of Connecticut, in trust, nevertheless, for the following uses and purposes: To hold, manage and control, lease, mortgage, sell and convey, invest and reinvest as in the discretion of said trustee shall seem for the best interests of said estate, but only in the manner provided by law in the state of Connecticut for the investment of trust funds, the income and profit thereof, together with such portions of the principal as said trustee in his discretion may deem proper, to be applied to the support and maintenance of my sister Edith Porter Burritt, who resides at Waterbury, Connecticut, for and during the term of her natural life, and upon her death I give and bequeath the principal of this trust fund to my cousins, Margaret W. Clussman and Katherine Elizabeth Temple, both of New York City, share and share alike, absolutely. In the event of the death of either said Margaret W. Clussman or Katherine Elizabeth Temple before my decease, or after my decease, and before the death of my sister, Edith Porter Burritt, I give, devise and bequeath the share of such deceased beneficiary in my residuary estate to her lineal descendants, share and share alike per stirpes and not per capita; the same to be to them, and their heirs forever."

The two cousins, Margaret W. Clussman and Katherine Elizabeth Temple, living at the death of the testatrix, predeceased Edith Porter Burritt, the life beneficiary. Margaret W. Clussman, who, at the date of the will was 62 years old, a maiden lady, died without lineal descendants. The children of Clara Clussman Shipman, another sister of Margaret W. Clussman, deceased, contend that Margaret W. Clussman took a vested remainder, while the accounting party contends that the testatrix died intestate as to one-half of her estate, and it passed to the sister, Edith Porter Burritt, the heir at law and next of kin. The life beneficiary died July 4, 1926.

[1, 2] Did the remainder interest in the trust fund vest in Margaret W. Clussman and Katherine Elizabeth Temple in equal shares? The words of gift, to lineal descendants, in the event of the death of either said Margaret W. Clussman, or Katherine Elizabeth Temple, before the death of the life beneficiary were words of substitution. In the event of their death, their lineal descendants are to be substituted for themselves. Matter of Evans' Will, 234 N. Y. 42, 136 N. E. 233. The primary trust was for Edith Porter Burritt, and upon her death, but not before, the two cousins were to succeed to the enjoyment of the estate. It is the opinion of the court that their title to the trust estate did not become indefeasible and perfect while the life beneficiary was living. Call it vested, or contingent, as you may, it was subject to be divested by their death before the passing of Edith Porter Burritt.

[3] The direction to distribute was upon the death of the life tenant and those entitled in remainder take nothing, except as it may pass to them pursuant to the terms of the will. Matter of Bostwick's Will, 236 N. Y. 242, 140 N. E. 576. Where a gift of property is made to take effect in the future upon the termination of intervening life estates, and a sub

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