In re the Final Judicial Settlement of the Accounts of Groth , 128 Misc. 905 ( 1927 )

Slater, S.

Construction is sought of the 3d paragraph of the will, which is as follows:

“ I give and devise to my son Gustav Adolf Groth my house and lots on Rose Street, in Uniontown, Hastings-on-Hudson, N. Y., said lots being numbered 352, 353 and 354 respectively on 1 Map of Lots in Uniontown.’ I make this bequest with this condition that said house and lots are not to be mortgaged, transferred or sold during the lifetime of my son Gustav Adolf or during the minority of his children but should eventually go to my son’s, that is, Gustav Adolf’s children. Should anyone of my son’s, that is, Gustav Adolf’s children turn out bad, my son Gustav Adolf has herewith the right to disinherit such child as far as this house and these lots are concerned.”

The intention of the testator should be sought. Was it his intention that the son Gustav Adolf should enjoy a fee estate, or only a life estate in the property described in the 3d paragraph of the will, with remainder to Gustav’s children? The first part of the paragraph standing alone would create a fee in the son absolutely and without qualification, but it does not stand alone. It is quite different from the case of Banzer v. Banzer (156 N. Y. 429). It is immediately without the intervention of any other provision followed by a second sentence which is clearly connected with and related to the first sentence. The second sentence must necessarily refer to the first sentence and to the property described in it. The condition with reference to the property being mortgaged and transferred or sold is illegal and void contravening the statute. The 3d clause relating to the right of the son to disinherit a child is uncertain, indefinite and void. Thus, we have the first sentence creating the words of complete gift, with the second sentence, which is made upon condition that the property “ should eventually go to my son’s, that is, Gustav Adolf’s children.”

I shall hold that the will gave a life estate in the real estate in Hastings-on-Hudson to the son Gustav, with the remainder in his children as a class to be determined at his death. (Mee v. Gordon, 187 N. Y. 400.)

William John Groth, the grandson who was born five months after the death of the testatrix, is entitled to share in the residuary estate given by paragraph 5 of the will. (Matter of McEwan, 202 App. Div. 50.)