60 How. Pr. 311 | N.Y. Sup. Ct. | 1881
The testator devised his real estate to his wife for life, and at her decease directed a sale by the executors and the investment of a sufficient portion of the proceeds to produce four dollars a week for his daughter Seraphina, the balance to be divided between his other children, Josephine, Albert and Jerome, “ or their or either of their legal- representatives, him, her or them surviving.” After the death of the daughter the disposition of the fund invested for her benefit was in the same words. The testator’s wife had three children by a former husband. The daughter Josephine died intestate and without issue before, and the son Jerome after the widow. The principal question relates to the disposition of the surplus at present existing after the investment for the benefit of Seraphina, and an expression of opinion by the court is requested to guide the trustee in his action after her death.
' It is clear that the widow took a life estate in the realty, and the children named a vested interest in the proceeds of the sale after her death. It is evident from the clause the testator intended the benefit given to each child for his or her legal representatives, and the additional words do not modify that design, but were apparently added by the scrivener as usual legal phraseology, which were inapplicable and meaningless. The bequest over to the children was a gift of personalty, because the division was not-to be made until after the realty was sold under the power conferred upon the executors. Beal estate .directed- by a will to be converted into money and the proceeds applied as directed is, in equity, regarded as personal property (Bramhall agt. Ferris, 14 N. Y. R., 41; Teed agt. Morton, 60 N. Y. R., 507; Moncrief agt. Ross, 50 N. Y. R., 431; Forsyth agt. Rathbone, 34 Barb., 388; Johnson agt. Bennett, 39 id., 237; Irish agt. Huested, id., 413).
The equitable conversion does not take place, until the time arrives when, under the direction in that behalf, the sale should be had. Whatever vested interest may pass by the death of a distributee prior to that-period, even if in realty,, is subject to be divested by the coming of that time. Therefore,
A decree is directed in conformity herewith, with costs from the fund.