140 N.E. 576 | NY | 1923
The proceeding is one for the construction of a will.
The testator, Jabez A. Bostwick, devised and bequeathed a third of his residuary estate to the Farmers' Loan and Trust Company as trustee upon the following trusts: "To manage and protect the same and to receive the rents, issues and profits thereof, and to pay the same quarterly as they accrue to my wife Helen C. Bostwick during her natural life and upon her death to pay the same quarterly as they accrue to my son Albert C. Bostwick, until he shall arrive at the age of twenty-one years, and after he has attained said age to continue to pay the *245 rents, issues and profits of one half of said trust estate to my said son during his natural life, and upon the arrival of my said son at the age of twenty-one years to convey, assign and deliver one-half part of the said estate so held in trust to my said son, and upon the death of my said son to convey, assign and deliver all the estate then held in trust, be it the whole or one half part thereof as aforesaid, to the lawful issue of said Albert C. Bostwick share and share alike, or in default of such issue to the next of kin of said Albert C. Bostwick."
The testator died in 1892, survived by wife and son. The son died in November, 1911, at the age of thirty-three. The wife died in April, 1920. The trust ended with her death, and the court must now decree the distribution of the principal. The surrogate held that the son's remainder was subject to be divested by death before the termination of the trust, and that the principal was, therefore, to be divided among the issue. The Appellate Division held that in respect of one-half of the principal, the son's estate became vested indefeasibly when he reached the age of twenty-one, though the trust was still outstanding, and that distribution of this half must be made under his will, and not under his father's. We find ourselves in accord with the conclusion of the surrogate.
No part of the estate was to be conveyed, assigned or delivered to the son during the life of the testator's wife. The primary trust was for her, and no one else. "Upon her death," but not before, the son was to succeed to the enjoyment of the estate. The income of half was then to be paid to him during life; the income of the other half till he reached the age of twenty-one. The argument is made that upon his reaching that age, his title to half became indefeasible and perfect, though his mother was then living. We read the will differently. Whatever right he had, whether it be classified as vested or contingent, was subject to be divested by his death before his *246 mother. The trustee at the appointed time was not merely to convey and assign. It was also to deliver. Conveyance and delivery were impossible while the trust for the mother was outstanding. The trust for the son was not to be divided into halves until it began, and it was not to begin until the prior trust had ended. If on his mother's death, he was alive and of age, he was to become the owner of one-half of the estate, andpro tanto the trust would end. If on his mother's death, he was not alive, conveyance and delivery of "all the estate then held in trust, be it the whole or one half part thereof" was to be made to his issue, or, if there were none, to his next of kin. Majority did not give an indefeasible title to the half without survivorship at the end of the primary trust, and survivorship did not give it without the attainment of majority. The son satisfied one and only one of the prescribed conditions. If he had reached twenty-one and had survived his mother, half of the estate and not the whole, would have been held in trust at his death, and only half in that event would have gone to his issue. He did reach twenty-one, but did not survive his mother. As a consequence, the whole was held in trust both at his death and at hers, and the whole, and not merely half, is to be conveyed under the will. The direction to distribute upon the death of the son is subject to the condition that the mother be then dead. The same condition attaches to the direction to divide upon majority.
We are referred by counsel to many cases. They are of little help in the construction of provisions so distinctive. Some force may properly be attributed to the absence of words of direct gift. Those entitled in remainder take nothing under the will except as something passes to them under the execution of a mandate laid upon the trustee to deliver and convey (Matter ofBaer,
The order of the Appellate Division should be reversed and the decree of the Surrogate's Court affirmed, with costs in the Appellate Division and in this court payable out of the estate.
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Order reversed, etc.
