15 N.Y.S. 470 | N.Y. Sup. Ct. | 1891
Henry Tienken died in Kings county in October, 1884, leaving a last will and testament, and codicil thereto, which have been admitted to probate. The testator left a widow, Anna Tienken, and four children. One of the testator’s sons, Henry M. Tienken, died in October, 1889, leaving a will, and leaving a widow and no children. By his will he gave all his property to his wife. The.question presented is whether the deceased son had any estate under his father’s will which he could transmit by a will of his own. The life-estate of the widow is not yet terminated. By the will of the elder Tienken, a life-estate is given to his wife in certain land. The rest of his lands were to be managed by his executors, and out of the proceeds $2,000 a year was to be paid to his wife, and the balance yearly to be divided among his children. Certain real estate might be sold during the existence of the life-estate, and one-third invested for the widow for life, and the balance divided among the children equally. The will provided that, if any child be dead leaving issue, the issue should take the father’s share. Certain sums were to be set apart out of the personal property for legacies to certain named grandchildren, payable upon arriving at 21 years of age. If any grandchild should die before that time, the legacy to be divided among the children. The will provided that, after the expiration of the life-estate, the remaining land should be sold, and the proceeds divided among the testator’s children. The clause which gives a child’s share in case of his death without issue, means a child who dies during the testator’s life. Embury v. Sheldon, 68 N. Y. 227. A gift of a life-estate, with remainder “upon” and “at and after” the termination thereof to children of testator, gives a vested remainder at the death of testator, with time of payment only postponed. Livingston v. Greene, 52 N. Y. 124; Stevenson v. Lesley, 70 N. Y. 515. The will disposes of the whole estate. Applying these rules to the will, it is quite clear that it was the intention of the testator, at his death, to vest in each child then living an equal share of his estate, subject to the life-estate. Where a gift is only found in a direction to divide at a future time, the gift is contingent, but this rule must yield to the intent of the testator. The point presented is covered by the case of Goebel v. Wolf, 113 N. Y. 405, 21 N. E. Rep. 388. There was no immediate gift to the children.' -There was nothing on'
