Opinion of the Court, per DANFORTH, J. judgment rendered by a court having competent authority to deal with the subject-matter involved in the action, and jurisdiction of the parties, is final and conclusive between them. The cases cited by the appellant do not contravene that doctrine. Many of them were reviewed by the late learned Chief Judge DAVIES in Frost v. Koon (30 N. Y. 428), and from that examination, and the cases referred to, it appears that, while prior incumbrancers are neither necessary nor proper parties to an ordinary action of foreclosure, and that when made such under the general allegation that they claim an interest "as subsequent purchaser, incumbrancer, or otherwise," a decree will not affect them; and moreover, that if the facts upon which the plaintiff relies to defeat that prior title are stated, the defendant whose title is thus assailed may demur to the complaint upon the ground that the plaintiff has no right to bring him into court upon the foreclosure to try the validity of his title, yet, if the party so made a defendant should, instead of demurring, answer and litigate the question, and then judgment should go against him, no case decides that the judgment would not conclude him in a collateral action, nor do those cases decide that where such facts are stated as will, if admitted, subject that title to the plaintiff's mortgage and to the relief sought, the party against whom they are alleged will not in like manner be estopped from afterwards setting up his interest as against the judgment in the foreclosure action. And what binds him can be questioned by no one else. The present case is within the general rule, that a judgment is conclusive between the same parties and their privies upon all matters embraced within the issue in the action, and which were or might have been litigated therein. It is immaterial whether issue was joined by the defendant, or tendered by the plaintiff and left unanswered. The rule applies as well to a judgment by default when the facts stated. warrant the relief sought as to one rendered after contest. (Gates v. Preston, 41 N. Y. 113; Newton v. Hook, 48 id. 676.) We agree, therefore, with the General Term in the conSICKELS-VOL. LXVI. 23 111 178 140 104 111 178 150 93 111 178 159 97 Statement of case. clusion that the title tendered to the purchaser is a good title Order affirmed. PETER W. VAN BRUNT, Appellant, v. STEPHEN W. VAN M. died leaving eight children, seven of whom were married and had * * * It seems that the power of sale conferred upon the executors did not effect an undue suspension of the power of alienation. Schettler v. Smith (41 N. Y. 328) distinguished. The residuary clause also provided that, in case any of the testator's children should die leaving issue," said issue shall represent their parents per stirpes and not per capita, and receive their parent's share" of the rents and profits after the death or remarriage of their surviving parent until they became of age, when their interest shall be given to them. Held, that upon the death of any child, and of the husband or wife of that child who was living at the death of the testatrix, the portion or share of such child vested at once in his or her children, each one of whom taking his or her proportion in fee, subject only to a postponement of possession during his or her minority, and to the execution of the trust upon the rents and profits during that period; and there was, therefore, no unlawful suspension of the power of alienation; that the fact that the issue of each child were to take per stirpes does not make them joint tenants as the statute fixes Statement of case. how they shall take as between themselves (1 R. S. 727, § 44), and makes them tenants in common, in the absence of an express provision for a joint tenancy. (Submitted October 2, 1888; decided November 27, 1888.) APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 11, 1888, which affirmed a judgment in favor of defendants entered upon an order sustaining a demurrer to the complaint. This was an action for the partition of lands in the city of New York, formerly owned by Margaret Van Brunt, deceased, and disposed of under the residuary clause in her will. All the children of the testatrix, with their husbands and wives, were made parties to the action. The plaintiff, as son and heir-at-law of the testatrix, assails the validity of the residuary clause pursuant to section 1537 of the Code of Civil Procedure, as working an undue suspension of the power of alienation, and so claims that the residuary real estate was not disposed of by the will. The executors, with the other children of the testatrix, demurred to the complaint. The residuary clause of the will in question is as follows, viz. : "All the rest and residue of my personal property and all my real estate of which I may die seized, I give, devise and bequeath to my executors, hereinafter named, in trust, to collect the rents, issues, profits and income therefrom, and pay over the same to my children herein named, share and share alike, at such times, in such manner and in such amounts as my said executors shall deem most prudent, for and during each of their natural lives, free from any claim or demand that may be held against any of them by any creditor or creditors; and after their decease to their respective wives or husbands during their lives, or until they remarry, also at such times, in such manner, and in such amounts as my said executors shall deem most prudent. If any of my said. children should die without issue, and without leaving a husband or wife him or her surviving, then I give, devise and bequeath his or her share to the survivor or survivors of them, Statement of case. share and share alike. If he or she leave a husband or wife him or her surviving, then I give, devise and bequeath his or her share to the survivor or survivors of my said children, share and share alike, after the decease or remarriage of said husband and wife. If any of my said children die leaving issue, said issue shall represent their parents per stirpes and not per capita, and receive their parent's share of said rents, profits, issues and income, after the decease or remarriage of their father or mother, at such time, and in such manner, and in such amounts as my said executors shall deem most prudent, until they arrive at the age of twenty-one years (21) when their interest shall be given to them, to be held and enjoyed by them, their heirs and assigns forever." The material facts set forth in the complaint are stated in the opinion. Elon R. Brown for appellant. The words husband and wife, as used by the testatrix in the residuary clause of her will, must be construed to refer to one becoming such after the death of the testatrix, though possibly unborn and not in being at that time. (Schettler v. Smith, 41 N. Y. 328; Quackenbos v. Kingsland, 102 id. 128, 130, 131.) A trust to pay over rents and profits created in language which might permit the continuance of the trust beyond a period measured by two lives, in being at the death of the testator, and a single minority of a remainderman in addition thereto, is void. (Manice v. Manice, 43 N. Y. 374-384.) Where a primary gift not vested is declared void, because contingent on an event other than the determination of one or two lives in being, the limitation over dependent upon the same contingency, is void also, and cannot be sustained by regarding it as accelerated and vested immediately. (Rose v. Rose, 4 Abb. Ct. App, Dec. 108.) In the interpretation of the residuary clause in the will, the court will not only look at the language employed, but the surrounding circumstances, to determine what the intention of the testator was. (Kerr v. Dougherty, 79 N. Y. 348; Wolf v. Van Nostrand, 2 id. 236.) There Statement of case. being words of severalty, the trust itself is necessarily divisible, as far as the beneficial disposition of the will calls for the division and separation of any portion of the estate from the residue. (Mason v. Mason's Exrs., 2 Sandf. Ch. 432; Savage v. Burnham, 17 N. Y. 561, 571.) The excess over two lives in being cannot be dropped and the rest sustained. (Knox v. Jones, 47 N. Y. 389.) So far as this item in the will attempts to create a trust to pay the rents, profits and income to the husband or widow of a deceased child, as that husband or widow "might possibly be unborn at the death of the testator," it is void. (Schettler v. Smith, 41 N. Y. 32S, 339; Manice v. Manice, 43 id. 384; Kennedy v. Hoy, 105 id. 134; Van Schuyler v. Mulford, 59 id. 432; Knox v. Jones, 47 id. 389.) A trust with remainder to survivors will not be sustained by cutting off a trust with remainder to issue. (Harrison v. Harrison, 36 N. Y. 543; Schettler v. Smith, 41 id. 328; Manice v. Manice, 43 id. 383, 384; Van Schuyler v. Mulford, 59 id. 426.) As the testator was intestate upon the death of the wife, as to the entire corpus of the estate, it was equally divided among his heirs. (Benedict v. Webb, 98 N. Y. 466; Tiers v. Tiers, Id. 568.) The provision for the wives or husbands who might not be in being at the testator's death was cut off because it was a separate trust in a separate paragraph. (Ward v. Ward, 105 N. Y. 168.) William C. Spencer for respondent. Plaintiff cannot, if unable to establish that the testator died intestate as to the premises in question, change his action into one for the construction of the will. (Schuyler v. Schuyler, 59 N. Y. 426.) The courts will lean in favor of the preservation of all such valid parts of a will as can be separated from those that are invalid without defeating the general intent of the testator, and it is no objection to the application of this rule that the limitations, as well those which are good as those alleged to be bad, are embraced in a single trust. (Savage v. Burnham, 17 N. Y. 561, 576; Everitt v. Everitt, 29 id. 39, 57, 79; McKean v. Kearney, 57 How. 349; Darling v. Rogers, 22 Wend. 483; |