140 N.Y. 241 | NY | 1893
By the nineteenth clause of a will made May 20, 1880, the testator devised to his sister certain real property in the city of Brooklyn during her life, with remainder to her children in equal shares, and in case any of the children should be dead leaving lawful issue surviving such issue should take the share which the parent would have taken if living. By the twentieth clause he gave the residue of his estate to his sister's children in equal shares, to have and to hold the same to them, their executors, administrators and assigns forever. By the third paragraph of a codicil made April 9, 1881, he revoked and annulled the nineteenth clause of his will, and in lieu thereof he directed his executors to let the premises described therein, and out of the income arising therefrom, to pay to his sister the sum of six hundred dollars annually in quarterly installments, and to pay over the balance of the net income to his sister's children in equal shares. He made some other changes in his will not now material to be noticed, and ratified and confirmed it in all other respects. The provision of the codicil was thus substituted for the nineteenth clause of the will in its entirety; and the legal effect of the instrument, so far as it disposed of the real property in question, was to devise it to the sister's children, subject to the execution by his executors of a power in trust to let it for the lifetime of the sister and pay to her annually the sum of six hundred *246 dollars, and to her children in equal shares the balance of the net income. The testator died in 1881. Four children of his sister were then living, of whom Henry M. Tienken was one.
The executors rented the real property and distributed the income as required, until October 31, 1889, when Henry M. Tienken died, which event gave rise to the present controversy. It was then insisted by the surviving children of the testator's sister that the personal representatives of the deceased brother were not entitled to share in the distribution of the balance of the net income of this real property; that the executors were directed to pay it to the sister's children, and that they took as a class and not distributively, and that upon the death of Henry M. Tienken the surviving children became entitled to the whole. The surrogate decided otherwise, and held that the widow of Henry M. Tienken, who was the sole devisee and legatee under his will, was entitled to the share of the income which he would have taken if living.
The general term reversed the order of the surrogate and, by a divided court, affirmed the decree made in accordance with their decision, and held that the surviving children took the entire surplus income, to the exclusion of the representative of the deceased child, and the correctness of this decision presents the only question involved in this appeal.
The respondents rely upon the rule that where there is no gift except by a direction to executors or trustees to pay or divide at a future time, the gift does not vest in the beneficiary until that time arrives, and inasmuch as in the nineteenth clause of the will, as modified by the codicil, there is no gift in express terms to anybody, but merely a direction to rent the property and distribute the income from time to time, only such persons are entitled to share in the distribution as correspond to the designated class of beneficiaries existing at the time when each distribution is made. But the law favors the vesting of legacies, and this rule has many exceptions engrafted upon it, not the least important of which is that it must be subordinated to the intent of the testator, to be gathered from the entire testamentary scheme. (Bowditch v. Ayrault,
We think the intent of the testator is further evidenced by the modification of the twentieth clause made by the fourth paragraph of the codicil, where he provides that one of the children shall not receive the fee, but only the income of one-fourth of the residuary estate during his lifetime, and that the fee shall go to his children after his death. It is evident that he contemplated a division of income into four equal parts to correspond with the number of children living at his death. But, under the claim of the respondent, if all the children except this one should die in the lifetime of the mother, he would be entitled during her life to the entire surplus income.
We think in the present case that it is clear that the testator intended that the right of his sister's children to this real property and to the surplus income should vest in them immediately upon his death, and that the enjoyment only of the possession of the fee should be postponed, and that it is not distinguishable in principle from Goebel v. Wolf (
The judgment and order of the general term and the decree of the surrogate must be reversed and the order of the surrogate appealed from affirmed, with costs in this court to the appellant, to be paid out of the estate, and the proceeding remitted to the surrogate's court for a further hearing.
All concur.
Judgment accordingly. *249