Delafield v. . Shipman

Earl, J. We agree with the court below, and with the contention of the respondents that' the corpus of the residuary estate did not during the life of the widow vest in the testator’s children, and for this conclusion the cases of Warner v. Durant (76 N. Y. 133), Smith v. Edwards (88 id. 92), and Shipman v. Rollins (98 id. 311), are ample authority. The whole income is not given to the children during the life of the widow, *468 and during her life the estate is vested in the trustees. There is no direct gift to the children, but simply a direction for a division among them after the death of the widow. In Warner v. Durant, Folger, J., said: “ Where there is no gift, but a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting will not take place until that time arrives.” In Smith v. Edwards, Finch, J., said, that “it has been often held that if futurity is annexed to the substance of the gift, the vesting is suspended,” and that “ when the only gift is in the' direction to pay or distribute at a future time, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in-which time is of the essence of the gift.” These general rules must control the construction of this will, as there is nothing in its context or general language which renders them inapplicable. This construction too is in harmony with the presumed intention of the testator. He vested the whole estate, in the trustees during the life of his widow, and during that time evidently intended that it should remain there, and not be subject to the disposal of his children, or liable to be seized by their creditors; and after the death of his widow he gave it, not to the children living at his death, but to the children and descendants of children, deceased, living at her death. It is clear that the testator intended that his wife and children should take the surplus income, not as a class, not as joint tenants, but distributively as tenants in common. Such is the plain language of the will. The trustees were to divide the surplus “ equally between ” his wife and six children so as to give each “ an equal share,” and “ each one ” was “to defray out of his or her.share” his or her personal expenses.' Such language is always held to constitute the beneficiaries tenants in common, and to show that they take distributively, unless there is something in other provisions of the will to show that the testator intended that they should take as a class, and so it was held in Hoppock v. Tucker (59 N. Y. 202). Here there is nothing m the will to control, modify or limit the plain meaning of this language. The tes *469 tator’s wife was not old, and it appears that he contemplated that one or more of his children might, during her life, marry, die and leave descendants. He made no provision for the support of such descendants in the family home, and it cannot be supposed that he intended they should during the life of his widow be left without any means of support. He put such descendants in the place of their deceased parents after the death of his widow, and it is fair to infer that he expected that they would in some way take the place of their parents during her life. A construction giving such effect to the will will certainly come nearest to the presumed intention of the tes-' tator. Therefore, when Mrs. Shipman died the one-seventh of the income, which was payable to her during her life, did not pass to the surviving six, but was undisposed of by the terms of the will and was devolved upon the appellant under the Revised Statutes (1 R. S. 726, §40), which provide as follows: “ When, in consequence of a valid limitation of an -expectant estate, there shall be a suspension of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate.” This case precisely fits that section. There is a valid limitation of an expectant estate to the appellant. During the life-time of the widow there is a suspension by a valid trust of the power of alienation, and since the death of Mrs. Shipman the income is undisposed of by the will, and the appellant is the person presumptively entitled to the next eventual estate, and, therefore, entitled to the income otherwise undisposed of. The judgments of the (general and Special Terms should, therefore, be reversed, and judgment entered in accordance with this opinion, the costs of all parties in the Supreme Court and in this court to be paid by the trustees out of the surplus income of the trust estate. All concur. Judgment accordingly.