49 N.Y.S. 351 | N.Y. App. Div. | 1898
The 3d provision of the 5th clause of the will .of Edmund A. Smith, deceased, was as follows : “I direct my executors to invest the sum of $20,000 in safe and productive securities and pay the income arising therefrom semi-annually, to my mother, Hannah Smith, during her natural life, and after her death to divide the principal sum between Lewis Adam Wilson and Annie Louisa Wilson and Annie Smith, the daughter of my deceased brother, Abel, share and share alike.” Mrs. Hannah Smith, the person to whom the income of this fund was payable for life, is dead, as also is Annie Smith, one of the persons named to receive the remainder. The interest of Annie Smith in the fund has been assigned to the plaintiff and he brings this action to recover it. The sole question presented is whether, by the provisions of the clause above quoted, a vested remainder in one-third of that fund was given to Annie Smith. The learned referee concluded from an examination of all the provisions of the will that it was the intention of the testator that a remainder should be vested in the three persons to whom this fund was to be given after the death of Hannah Smith. The correctness, of this conclusion is challenged by the appellant, who insists that the construction of the'will is controlled by the rule that where in a will the only gift is contained in a direction to divide at a future time, it is contingent and not vested and is to be divided among those persons who answer the description of remaindermen at the time when the division is to take place. The general rule is undoubtedly well settled as claimed by the appellant (Smith v. Edwards, 88 N. Y. 104; Matter of Baer, 147 id. 348); but, as has many times been said, the rule is not invariable and always applicable, even in a case where the sole gift is contained in a direction to divide, and it will not be applied if, from a consideration of the whole will, it is to be collected that the intention of the testator was to give a vested remainder. (Goebel v. Wolf, 113 N. Y. 405; Campbell v. Stokes, 142 id. 23 ; Smith v. Edwards, supra.) In all cases it is the duty of the court in construing a grant or a will, to search out the intention of the testator or grantor and construe the instrument so as to carry
For these reasons we think that the conclusion reached by the referee was correct, and the judgment entered upon his report must, be affirmed, with costs.
.Yan Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.
Judgment affirmed, with costs.