In Re the Accounting of Russell

O’Brien, J. The provisions of the will of James Russell, disposing of his residuary estate, suggest several questions that need not be discussed, since counsel on both sides are in entire accord with respect to their proper legal solution. A statement of the questions and points as to which they agree will, however, tend to place the question with respect to which they differ in a clearer light. If I have correctly comprehended the arguments of counsel they agree.upon the following propositions that are involved in the case : (1) That, under the terms of the will, there is an equitable conversion of real into personal estate, and the -gift is a gift *173 of personal property, subject to the operation of the rules of law governing the devolution of .personal property. (2) That the interest of the widow and each child vested upon the death of the testator. (3) That the title to the residuary real estate descended to the heirs at law, subject to the execution of the power of sale in the will. (4) The will contemplates a division and distribution of the proceeds of real estate directed to be sold and converted into money at some future time, depending upon the reasonable discretion of the executors. We see no reason to dissent from any of these propositions. They are sustained by abundant authority, and assuming them to be reasonable in themselves and sound in point of law, we may proceed to examine the important question with respect to which there is a radical difference of views between counsel. The courts below have determined that the husband was entitled to the distributive share of the residuary estate which his wife would be entitled to receive if living at the time of distribution. The learned counsel for the executors, who have appealed from that decision, contends very earnestly that the share of the deceased daughter passed upon her death to the surviving members of her family, that is, to the. widow and the four children who survived. The fundamental proposition upon which he has constructed a very able argument is that the gift contained in the residuary clause of the will was not to the widow and children distributive]}'' or as tenants in common, but collectively and as a class which was subject- to be changed by the death of the members of the class before the time for distribution arrived, and that the daughter, having died before that time, had no interest.in the fund which could pass to her husband or was transmissible. On the other hand, the counsel for the husband conténds that the widow and children took the residuary estate under the will distributively and as tenants in common in equal shares which vested in them upon the death of the testator, and the interest of each was from that time alienable and transmissible. *174 It should be observed here that the learned counsel for the appellants admits that the interests of the widow and children vested upon the testator’s-death, but was subject to be divested and changed by the death "of any of them and the consequent diminution of the class which lie' contends took the fund collectively. Thus it will be seen that his entire argument rests upon the proposition that the gift is to a class and not to individuals distributively. If correct in his premises his conclusion must necessarily follow. Whether a devise or bequest in a will is to a classs or to the individuals as tenants in common must depend upon the language employed by the testator in making the gift. All the provisions of the will may be consulted and sometimes aid may be sought from the situation and relation of the parties. In this case there is nothing in the will, outside of the residuary clause itself, that throws any light on the question. I have not been able to find in any of the adjudged cases any attempt to define or formulate with much accuracy the language or circumstances necessary to constitute a gift to a class. Perhaps from the nature of the question it is impossible to lay down any general rule or to do more than to determine every case upon its own facts and to construe every will with, reference to the language employed by the testator and the surrounding circumstances. The language and the circumstances are so seldom identical that it is not often that one case can be determined upon the authority of some other case- or class of cases. But there are some principles and canons of construction recognized by all the authorities which when applied to the particular case will ordinarily enable the courts to arrive at a reasonable and just conclusion. When stated and applied to this case it will be seen that there will 'be little difficulty in determining the nature and character of the gift to the testator’s widow and children, whether collectively as a class, or distributively as tenants in common. A gift to a class has been defined by a recent decision of this court to be a gift of an aggregate sum to a body of persons uncertain in number at *175 the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the actual number. (Matter of Kimberly, 150 N. Y. 90.) At the time the gift in this case vested,-there was no uncertainty with respect to the number of the donees or the amount of each share, and it is difficult to see how the value or amount of the shares was in any way dependent upon the number of the beneficiaries who might survive the time of actual distribution. The rules of law applicable to grants or devises of real property to two or more persons apply to dispositions of personal property as well. (Mills v. Hasson, 140 N. Y. 99; Matter of Kimberly, supra.) It is declared by statute that every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common unless expressly declared to be a joint tenancy. (Real Prop. Law, § 56.) It is quite certain that there is no clear language in this will importing a gift to a class. That must be made out, if at all, by construction. The law not only favors the vesting of estates but such a construction of a will as will avoid the disinheritance of children who happen to die before the time of distribution. (Moore v. Lyons, 25 Wend. 119; Connelly v. O'Brien, 166. N. Y. 406; Matter of Brown, 93 N. Y. 295; Thomas on Estates by Will, vol. 1, 282.) ' The reason of this rule and the effect of the principle is said to be that all property which is the subject of any disposition^ whether testamentary or otherwise, will belong to the object of the gift immediately on the instrument taking effect or so soon afterwards as the object comes into existence or the terms thereof will permit. (Jarman on Wills, ch. 25, 756.) The absolute ownership of the subject of the gift, which includes the power of disposition, will vest immediately in the donee unless the instrument provides otherwise. Applying these principles of construction to the will in this case, it will, I think, be impossible to hold that the gift was to *176 a class and not to the widow and five children distributively as tenants in common. When a devise or bequest" is made direct to wife and children, in the absence of clear language indicating a gift to them as a body or a class, it should be held that they take individually as tenants in common and that their interest does not depend upon survivorship. (Savage v. Burnham, 17 N. Y. 561; Delafield v. Shipman, 103 N. Y. 463; Matter of Young, 145 N. Y. 535; Matter of Seebeck, 140 N. Y. 241; Matter of Tienken, 131 N. Y. 391; Moffett v. Elmendorf, 152 N. Y. 475; Thomas on Estates by Will, vol. 2, 1428, and cases cited ; Wagram on Wills, ch. 23, 288; Williams on Ex. 1320.) If the gift in this case was to the widow and children nomination, it would not then be claimed that they took as a class, and yet the mere fact that the testator omits to designate his children by name is ordinarily a circumstance of little importance in any inquiry as to the legal nature and character of, the gift. That circumstance may sometimes be considered with other provisions of the will in which the language indicates an intention to make the gift to a class. But when the testator groups together the objects. of his bounty and describes -them as in the will in question by the use of the words “ wife and children,” that circumstance alone cannot change the nature of the gift. In so far as this case depends upon the language of the will it must, I think, be held that the widow and children took an absolute vested interest in their respective shares of the residuary estate upon the testator’s death, and that such interest was alienable and transmissible like other personal property. The argument of the learned counsel for the appellants is based very largely upon considerations which he contends are apparent from the whole will. He urges with great force that the construction given to the will by.the courts below is contrary to the intention of the testator, since his purpose was to vest his property in his own family and give it to persons of his own blood and lineage; that he could not have intended to convert all of his lands, constituting the bulk of his estate^ into personalty, and that the husband of a deceased childless *177 minor daughter should take all of her share at the distribution, made after her death, at the expense of his own children and their mother. Arguments of this character are always persuasive, and when the will is open to construction frequently controlling, since the moral element in any controversy concerning the distribution of property after death commands attention, but we fail to find any room for its application to this case. It is probably true, as the learned counsel suggests, that the testator never thought that so large a portion of his estate should go to a stranger that he never knew and had never seen, and it -is quite likely that if the event which has happened could have been foreseen or anticipated by him he would have provided against it by some express provision in the will. Any scheme for the devolution of property after death is liable to be affected by unforeseen events such as marriages and deaths. Hence we should not impute to the words of the testator a meaning derived from a process of looking backwards. We should not attempt to give to his will an artificial construction which would disinherit one of the children who died before distribution in order to prevent her share from falling into the hands "of her husband. When we speak of the testator’s intentions we do not necessarily refer to some thought or purpose that was actually in his mind. We are now dealing with a will in which the language is clear, and we should impute to the disposing words the meaning which they naturally bear and not sdme meaning based upon .unforeseen events happening after the testator’s death. (Johnson v. Brasington, 156 N. Y. 185.) It is quite certain that the testator intended to give one-sixth of the residuary estate to this deceased daughter, who was about sixteen years of age when her father died. It is "reasonable to assume that the testator, as a reasonable man, when making the gift contemplated the possible marriage of his daughter and that the property which was the subject of the gift would be affected by the law governing that relation. That is simply -what has happened and what has brought a person who was a, stranger to the testator within the scope and range of his *178 bounty. While this result may not have been in the mind of the testator when he made ■ the will, yet it is but the natural legal' consequence of the disposition which he made and which the courts are not at liberty to avoid on the arbitrary assumption that the testator did not intend it. If the deceased daughter had transferred her interest in the fund before her death by deed or assignment to her mother, or to one of her brothers or sisters, or had disposed of it by will in favor of either, then the argument of the learned counsel for the appellant, based upon the intention of the testator to transmit the property only to his own descendants, would be shorn of much of its moral power, and yet the legal aspects of the case would be precisely the same then as now, since the daughter could not dispose of what she did not own, and she would have nothing to convey or dispose of if the gift was to a class. There is no restriction in the will to prevent any of the daughters, after the gift vested, from disposing of her share by will in favor of her husband in the event of her marriage. In this case there was no will or transfer, but, as the wife died intestate and without issue after the gift vested, the rights of the husband intervened and he took the share of his wife either as her personal representative or jure mariti. (Robins v. McClure, 100 N. Y. 328.) Considerable emphasis has been placed upon another clause of the will as indicating the testator’s purpose to limit the distribution of this fund to such of his descendants as should be living at the time of the distribution. He directed that in case any of his children should die, leaving lawful issue, such deceased child’s share was to be given to such issue. We do not perceive that this provision is in any degree inconsistent with an intention to make the gift to the widow and children distributively and as tenants in common, nor can we see how it tends to prove that the gift was to a class collectively. Moreover, we think that, under settled rules of construction, the death there referred to w.as a death of one of the children in the testator’s lifetime. (Stevenson v. Lesley, 70 N. Y. 512; Livingston v. Greene, 52 N. Y. 118; Washbon v. Cope, *179 144 N. Y. 287; Miller v. Gilbert, 144 N. Y. 68; Stokes v. Weston, 142 N. Y. 433; Matter of Tienken, 131 N. Y. 391; Goebel v. Wolf, 113 N. Y. 405; Vanderzee v. Slingerland, 103 N. Y. 47; Quackenbos v. Kingsland, 102 N. Y. 128.) This rule yields only to clear language in the instrument indicating that the testator referred to a death at some other time. The testator also indicated that the net income of his estate until distribution be divided equally between his wife and children si i are and share alike. It is quite true, as the learned counsel for the appellants has observed, that this clause was unnecessary if the testator intended to give the corpus absolutely, since the income would, as matter of course, follow the corpus, but the construction of the will is not changed by unnecessary provisions inserted from abundant caution. It is quite clear that these words were not used to indicate a gift to a class. If such was the intention of the testator he would undoubtedly have expressed himself in some clearer and more direct way. When á testator intends to coniine the gift to a class, to be ascertained at a future time, his purpose may be so easily accomplished by the use of a few clear and simple words that courts are not warranted, in the absence of such language, in giving to his dispositions of property an exceptional legal character. The general rule is, that when there is a gift to widow and children expressed in general terms, they will take distributively unless it appears clearly from some provision of the will that the testator intended that they should take as a class and thus confines his bounty to those only who survive some future event. There is no such limitation in the will in question, and sO, we think, the order appealed from must be affirmed, with costs. Parker, Oh. J., Bartlett, Haight, Yarn, Lardor and Culler, J J., concur. Order affirmed.