In re Hyde

The Special Term properly dismissed the petition and the order should be affirmed. We place our concurrence upon the ground that upon the conceded facts no case was made within the statute requiring the respondent Ellen Gage to produce Maria Clark, the alleged life tenant of the premises. Whether or not she was a life tenant depenas upon the provisions of the will of John McLean. *74The respondent contends that by that will Maria Clark took a fee simple absolute, and that the petitioner Bridget Hyde, named in the will as Bridget McLean, the daughter of the testator, would have no estate in the lands, although Maria Clark be dead and left no issue surviving as she survived the testator. This contention on her part is placed upon the ground that the proviso or contingency expressed in the words, “ but in ease my said daughter Maria McLean shall die without issue,” refers to the time of her death happening in the lifetime of the testator, and as she survived the testator she at once upon his death became the absolute owner.

The petitioner maintains that Maria McLean took only a contingent estate in the foe, which was reduced to a life estate when the contingency named in the will happened, to wit, “ her death without issue.” In support of her position as to the proper construction to be placed on the will her counsel cites Buell v. Southwick (70 N. Y., 581); Nellis v. Nellis (99 id., 505; S. C., 3 Eastern Rep., 423).

It was held that by the respective wills under consideration, in those cases the primary devisee took only a contingent estate in fee, which was liable to be reduced to a life estate in case of devisee’s death without . children or any descendants of children. The petitioner bases her claim of title and the right to the possession of the premises upon the ground that by the will of John McLean, Maria Clark took only a life estate in case she died without issue.

The statute authorizing summary proceedings for the purpose of ascertaining whether a life tenant is dead or not has no application to a case like the one now presented. The title of the Code regulating the proceedings is entitled “ proceedings to discover the death of a tenant for life.” The section upon which the petition is based provides “a person entitled to ■ claim real property after the death of another, who has a prior estate therein, may not oftener than once in each calendar year, apply by petition to the Supreme Court * * * for an order directing the production of the tenant for life as prescribed in this title, by a person named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead; or, where there is no such person, by the guardian, husband, trustee or other person, who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate.” In case an order is *75granted the person to whom, it is directed is required, at a time and place therein to be mentioned, before the court or a referee therein designated, to produce the person upon whose life the prior estate depends, or in default thereof, to prove that he is living. (Sec. 2305.)

The form and effect of the final order, if one is granted in support of the proceedings, is found in section 2310, which provides that “ if it appears * * * that the person upon whose life the prior estate depends, was not produced; and if the party required to produce him or to prove his existence, has not proved to the satisfaction of the court that he is living, a final order must be made, declaring that he is presumed to be dead, for purpose of the proceedings, and directing that the petitioner be forthwith let into possession of the real property as if that person was actually dead.”

This title of the Code is but a reproduction of the Revised Statutes on the same subject, with some added provisions as to the mode and manner of procedure. It is manifest that the statute applies only to a case where the prior estate is held by one who is a life tenant proper in the legal and technical sense of that term.

A tenant for life, of estates, is one to whom lands or tenements are granted or devised, or to which he derives title by operation of law, for the term of his own life or the life of another. This will, in terms, does not givo the devisee, Maria McLean, a life estate only ; on the contrary, she is given a contingent fee, as the plaintiff admits, but claims that the contingency has happened by which the fee was reduced to a life estate. The petitioner is necessarily forced to maintain, as her learned counsel has argued before us, that the prior estate devised to Marie McLean, although properly denominated a fee, because it might last forever, was,, nevertheless, a base or determinable fee, because it was liable to be defeated by the happening of the contingency upon which it was limited; in other words, that the estate devised to the first taker by the will was a determinable or qualified fee. Therefore, in a strict sense, Maria was never a life tenant of the premises. Assuming that she is now deceased, yet, if at the time of her death she was in possession as owner of the fee, and if she, in fact, left children surviving, then they would take an absolute fee as her heir-at-law by the express terms of the will, and this the petitioner admits.

*76The only fact which the court has the power to try and determine in these proceedings is whether Maria McLean and John Lane are now dead or living. If it should be found that they are dead, then it does not follow that the respondents should be required to surrender up the possession of the premises to the petitioner, for Maria may have left descendants, who would have a fee in the promises, a fact this court has no jurisdiction to determine in this matter.

We purposely refrain from expressing any opinion as to the proper construction which should be given to the will of John McLean, beyond expressing the opinion that Maria McLean, the first taker, was not a tenant for life of the premises, in the sense in which that term is used in the statute upon which these proceedings are based.

The order should be affirmed, with ten dollars costs and disbursements. (Code, § 2316.)

So ordered.