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will

Related Cases

Livingston v. Greene, 7 Sickels 118, 52 N.Y. 118, 1873 WL 10244

Facts

Henry A. Livingston's will granted his wife a life estate in his real estate, with the remainder to his eleven children after her death. Several of the children died intestate and without issue before the widow's death. The dispute arose over the interpretation of the will's language regarding the distribution of the estate among the children and their heirs, particularly concerning the vested interests of the children who predeceased the widow.

L. had eleven children, all of whom and his wife survived him. Three of the children subsequently died intestate and without issue.

Issue

Did the language in Henry A. Livingston's will create a vested remainder for his children that was not defeated by their deaths prior to the death of their mother?

The words, 'should any of my children die and leave lawful heirs,' in the will of L., referred to a death during the lifetime of the testator.

Rule

The court held that the language in the will created a vested remainder in the children, which was not contingent upon their survival until the widow's death.

It cannot be denied that the children of the testator, under this will, took a vested remainder in his real estate at his death.

Analysis

The court analyzed the will's provisions, particularly the phrases regarding the death of the children and the timing of the estate's distribution. It concluded that the words 'should any of my children die and leave lawful heirs' referred to deaths occurring during the testator's lifetime, and that the children had a vested interest in the estate that was not negated by their deaths before the widow's passing.

The language used in the seventh clause, 'should any of my children die and leave lawful heirs,' in the absence of other controlling provisions, refers to a death in the lifetime of the testator.

Conclusion

The court affirmed the judgment, ruling that the devisee of A. was entitled to one-eighth of the real estate, as the vested remainder was not defeated by the deaths of the children prior to the widow's death.

The judgment should be affirmed.

Who won?

The devisee of A. prevailed in the case, as the court found that the vested remainder created by the will was intact despite the deaths of the children before the widow.

The court held and decided that Abraham H. Livingston, by his father's will, took a vested remainder in fee in said real estate.

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