65 A.D. 600 | N.Y. App. Div. | 1901
As the absolute ownership is suspended for the life of the widow and for each share during the life of each child of the testator, the practical question upon this appeal is whether the gifts to the grandchildren are vested or contingent, or, in other words, is time annexed to the gifts or only to the payments thereof ? The learned counsel for the appellant insists upon the application of certain familiar rules of construction recently reiterated in Warner v. Durant (76 N. Y. 133); in Matter of Baer (147 id. 348), and in. Matter of Crane (164 id. 71). The intent of the testator, as
At the death of the wife the executors are directed to set apart one of the shares of the estate for each child, and in the case of the death of any child before the wife, its share is to be paid, divided and distributed to and among its lawful issue as and when such issue becomes twenty-one years of age. In Paterson v. Ellis (11 Wend. 260, 276) the court said that there was no doubt that a legacy vested when it was separated from the testator’s estate and invested in the name of the legatee. Though it may be said that such severance was necessary to the scheme which required a division at the death of the wife, yet this is not precisely the case, inasmuch as the testator might have provided that the shares of the children respectively should be carved out of the corpus. Further, there is the direction to set apart, provide and invest for the descendants “ then living; ” that is, the class that is to take is then determined. And it is such share that is to be paid, divided and distributed among such descendants equally “ as and when ” they respectively attain the age of twenty-one years. There is nothing to indicate that the testator contemplated the death of any such descendants during minority. The gift is not made to such descendants as may be living at the age of twenty-one years, or to the survivors or survivor of them who may attain majority. And it has been held that such omission is indicative of intent. (Goebel v. Wolf, supra ; Townshend v. Frommer, 125 N. Y. 446.) The testator does not make the gift if such descendants attain the age of twenty-one years, or provided they attain that age, but only indicates the period which must elapse before the payment can be demanded. (Bushnell v. Carpenter, 92 N. Y. 272.) If the testator had intended that the estate was not to vest until the period of the majorities, it is far to seek his reason
The law is not concerned with such a suspension as is natural to the object of the gift, such as infancy. (Beardsley v. Hotchkiss, 96 N. Y. 201; Everitt v. Everitt, 29 id. 39, 77; Livingston v. Tucker, 107 id. 549, 552; Craig v. Craig, 3 Barb. Ch. 76.) The children
The judgment must be affirmed, with costs.
Goodrich, P. J., Woodward, Hirsohberg and Sewell, JJ., concurred.
Judgment affirmed, with costs.