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*625By the Court, Willard, P. J.

The will of John Lintner took effect by the death of the testator in May, 1828, a short time after it was executed. The rights of the parties must be governed by the law as it then stood. Chapter one of part two of the revised statutes was not passed until December 10,1828, and by the act relative to the revised statutes, it did not take effect until the 1st January, 1830.

. In Jackson v. Staats, (11 John. 337,) the will, after devising several pieces of real estate to the testator’s children by name and to their heirs, had this clause: “ And if any one or more happens to die without heirs, then his or their parts or shares shall be equally divided amongst the rest of the children.” This was held to be a valid executory devise. The devise to the first taker created a fee, liable to be defeated, on the death of the devisee without issue. The same doctrine was held in Fosdick v. Cornell, (1 John. 439;) Jackson v. Blanshan, (3 Id. 292;) Moffat v. Strong, (10 Id. 12;) Anderson v. Jackson, (16 Id.382 ;) Wilkes v. Lion, (2 Cowen, 333;) Cruise's Dig. tit. 38, ch. 17, passim.

According to the doctrine of the above cases, on the death of David Lintner without lawful issue, the devise to him vested in his surviving brothers as tenants in common, in fee. And of course, if he had acquired no other estate in the land, the mortgage given by him to Fox in August, 1844, became ineffectual on his death in February, 1845. He could mortgage only such estate as he had, and as that terminated by his death without issue, his brothers took the estate under the executory devise, clear of the mortgage.

But Abraham Lintner and the other brothers of David Lintner, on the 4th June, 1838, united in a quitclaim deed to the latter, in fee, of all their right and title to the premises; and the important question in the case is, whether that instrument passed the contingent estate of the grantors, to the said David. If it did, the plaintiff has no title to the land, and the same is vested in the defendant under the statute foreclosure of the mortgage given by David to Fox in 1844.

The plaintiff’s counsel contends that Abraham Lintner had *626“ no interest in possession or right certain to be conveyedand he likens it to the case of a conveyance by a son, of his expectancy, during. the lifetime of his father. Such conveyance is clearly inoperative. (Jackson v. Bradford, 4 Wend. 619. Tooley v. Dibble, 2 Hill, 641.) But the cases are not analogous. David Lintner took an estate in fee under the will of his father, liable to be defeated on his death without issue, in which case it vested by the terms of the will as an executory devise in his surviving brothers. Those brothers had such an interest, in 1838, as could be released to David Lintner in fee. And all having united in the conveyance, the absolute fee simple became vested in him. That estate passed under the mortgage foreclosure, and became vested in the defendants.

[Warren General Term,May 3, 1852.

WiUard, Band, Cady and C. L. Allen, Justices.]

The quitclaim deed given by Abraham Lintner and wife and the other brothers of David Lintner, to the latter, in fee, in June, 1838, was a release by the persons in whom the estate by possibility might vest in possession as an executory devise, to the party in whom the fee was then vested, subject only to be defeated by his death without issue. It falls under the third class of releases mentioned in the books, and operates by way of enlargement of the estate of the releasee. (Cruise's Dig. tit. 32, ch. 6, § 28. Litt. § 465. Touchstone, 320, 325, 326.) There was the requisite privity between the releasors and releasee. The releasors had a present right, though not to take effect in possession until the happening of a future event. Such a right may be presently released to the person in possession. (Co. Lit. 365 a. Cruise's Dig. tit. 32, ch. 6, § 19.) The defendant is entitled to judgment.

Judgment for the defendant.

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