The Edward Livingston Farm

Copy - loaned by Miss Josephine McGrath

Cullen and Dyman                  May 5, 1917
177 Montague Street
Brooklyn NY

My opinion is asked as to the title of Charles Victor Livingston to a tract of land in the county of Sullivan.

Dr. Edward Livingston, the owner of the land, died in 1864 leaving a last will and testament bearing date July 1st, 1852. by which he disposed of the premises in question so follows:
I give and bequeath to my nephew Charles Octavius Livingston, the son of my deceased brother Robert Montgomery Livingston, the farm on which I now reside consisting of two hundred acres situated int the town of Rockland, aforesaid, being part of the property given to me by my deceased father John R. Livingston in the year eighteen hundred and twenty two, the deed being in the possession of John Kiersted Esquire or his heirs and recorded int the clerk's office of the County of Sullivan at Monticello, said farm being in great lot no. four on the Hardenburgh Patent, situated upon the four lots surveyed by Cockburn in the year seventeen hundred and fifty.

page 13  (page 12 missing)
..... lots- eighty - eight, eighty-nine, ninety -nine and one hundred, also all that is thereon and therein contained, buildings, furniture, picture, engravings, plates, china, horses, carriages, wagons, vehicles of every description, farming silos, stock, hay, grain, library and books of every kind whatsoever. said farm and its appurtenances to be used and enjoyed b y my said nephew during the term of his natural life, and at his decease to descend to the eldest son of my said nephew who shall then be living. and if my said nephew shall die leaving no sons, the said farm shall be descend to the daughter of my said nephew, who shall then be living. and the issue of such daughters as may before that time have died.

And in case my said nephew shall die leaving no issue, then I bequeath the said farm to my nephew John R. Livingston during the term of his natural life, to be by him used and enjoyed and after his death to descend to the eldest son of the said John R Livingston withall they be living and if the said John R. Livingston shall have no son him surviving, the said farm shall descend to such of the daughters of the said John R. Livingston as shall at the time of his decease be living, and the issue of end of daughters as shall before that time have died.
And I hereby enjoin upon my said nephews and such of their children who may at anytime become possessed of said farm under this will, that they do not sell or in any manner part with the same. it being my desire that the farm with appurtenances shall remain the possession of my family, and that the same shall not be sold or pass into the possession of strangers.
This will was admitted to probate in the office of the Surrogate of the County of Sullivan on the 10th day of June 1864.
The testator's said nephew Charles Octavious Livingston, entered into possession of the land under said will.
On the 12th day of September 1871, said Charles O. Livingston by deed dated on that day, assumed to convey in fee simple the said tract, excepting a smaller portion of that Edward Livingston, the testator. had conveyed during his lifetime, and another parcel that Charles had conveyed to Medad T. Morss. of Woodbury, Sullivan County in the state for the sum of $6800. By said deed the grantor Charles O. Livingston covenanted with his grantee that his children and descendants, lawful issue of him, should be forever escaped and barred from claiming any title or estate or interest in the said lands. or any portion thereof, by inheritance through him or through and other person whomever claiming title to the premises, or any portion thereof, through or by inheritance of or from Edward Livingston, deceased.
The granter entered into possession under said deed of the lands therein described which have been subdivided i\and conveyed to many persons who now hold the same.

Charles Octavius Livingston died on May 30, 1914 leaving two sons the elder of whom, Charles Victor Livingston who never in any manner has conveyed or encumbered said premises or any interest therein. The said Charles Victor Livingston was born august 30th 1873. The father, Charles Octavius, never had any other sons than the two mentioned.
The rights of Charles Victor to the land in question seems to me very clear and not susceptible of any serious attack.
Under the will of the devised to Charles Octavius Livingston is to be used and enjoyed by my said nephew during the term of his natural life. His interest is clearly limited to a life estate.
The will then proceeds " and at his )Charles Octavius decease to decent to the eldest son of my said nephew who shall then be living. and if my said nephew shall die bearing no son, then Under this last provision, Charles Victor to a remainder infer subject to be defeated only by his death before that of his father GMoore V. Littl,NY 661
But if we should assume that the remainder to Charles Victor was contingent only, it would make no difference as to the right of the parties. It would be much a difference in nomenclatures, as under our statutes contingent remainders are as invisible as any other intended in property (53 NY 2115)
Therefore, on the death of his father, Charles Victor became seized of the premises in the simple absolute and entitled to possession of.
It is elementary law in that no conveyance by a life tenant can impair or affect the right or estate of a remainder man.
Nor does the statute of limitations , or rather adverse possession, run against the remainder margins until the expiration of the life estate (Christe V gage 71 NY 189); 211 NY 355) at common law the attempt of a life tenant or tenant for years to convey the estate in fee, as Charles Octavius did in this case, should work a forfeiture of his life estate, but this rule was long ago abolished by the revised by the Revised Statues (irs 739 s. 145, which is reproduced ihnt the real property act S 227) S. Charles Victor could not maintain any action to assert his title until after the death of his Father.
The warranty contained in the deed from Charles Octavius to Morss Can in no way estop Charles Victor from recovering the land. As was said by Mr Frrman (Judgements S162)
"Kinship, whither by affinity or consanguinity, does not create a priority except where it results in the descent of an estate from one to another except where it results in the descent of an estate from one to another.
Therefore there is no priority between husband and wife, or parent and child, or other relatives, when neither of them has succeeded to and estate or interest in property formerly held by the other. There was so held in Downey V Seith (185 ny st P433) where the foregoing excerpt is quoted as stating the law. The same rule obtains in the case of deeds as in that of judgments. So in the present came there is no priority between the father and the son because the latter does not claim title through his father. but under the will as purchaser from his father's uncle.
For reasons I have stated, I am therefore of the opinion that the right of Charles Victor Livingston to the land conveyed by his father is clear and that his claim cannot be successfully resisted
Signed Edger M. Cullen

Document obtained from Wayne Levitt who in turn got it from Mrs. Raymond Rose and she got it from Josephine McGrath

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