Baker v. . Lorillard , 4 N.Y. 257 ( 1850 )

I agree with my brother Harris that the decree should be reversed, but can not follow in all the steps by which he has reached that result. As I read the will of Thomas Pearsall, having regard to the rules of law applicable to the case, the conclusions at which I have arrived are, that the testator gave an estate for life, not a fee tail, to Duncan P. Campbell; remainder in fee to the children, (or children and grandchildren — it is not important in this case to say which,) of Campbell; with an executory limitation over to the testator's son Thomas, in case Campbell should leave no child, (or grand-child,) living at the time of his death.

Campbell had power to appoint the estate in remainder to any one or more of his children to the exclusion of the rest; or to his grandchildren, if he should leave no children. The first born child of Campbell took a vested remainder in fee, subject to open and let in after-born children (and grandchildren;) and subject to be defeated by the execution of the power of appointment.

The plaintiffs cannot give a good title to the land for several reasons.

1. Should Campbell survive all his children, (and grandchildren,) the estate in remainder will go the testator's son Thomas, who was not a party to the sale in 1825.

2. The three children of Campbell who were not born at the time of the sale in 1825, were not, and could not be affected by that sale. (Stat. 1814,p. 116, ch. 108; Id. 1815, p. 103; 2R.S. 194, § 170-180.)

3. The power of appointment may be so executed as to give the whole estate in remainder to a child who was not born at the time of the sale in 1825, or to grandchildren who were not parties to that proceeding.

A majority of my brethren concur in these views; except that some of them choose to express no opinion on the question, whether the sale in 1825 binds all of the children of Campbell, or only such as were in being at that time.

We are all agreed that the decree should be reversed, and the bill be dismissed.

Ordered accordingly