Quade v. Bertsch

Jenks, J.: 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 [605] gathered from the four corners of the will, is the cardinal canon of construction, and the rules invoked by the appellants, like almost all other rules, are said to be subordinate to it and not destructive of it. (Dougherty v. Thompson, 167 N. Y. 472; Matter of Crane, supra ; Goebel v. Wolf, 113 N. Y. 405, 412; Matter of Young, 145 id. 536, 538.) It is our duty first to search diligently throughout the will to find, if possible, in the scheme, the provisions and the text thereof the intent of the testator, mindful, too, that the law favors the vesting of estates. (Dougherty v. Thompson, supra ; Matter of Seebeck, 140 N. Y. 241, 246.) 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 [606] for the omission of all provisions as to the interest or income upon the shares in question. In Du Bois v. Ray (35 N. Y. 162, 167) such omission was considered to be strong evidence against an intention of the suspension of ownership for that period of time. (See, too, Manice v. Manice, 43 N. Y. 303, 366; Clancy v. O'Gara, 4 Abb. N. C. 268, 273.) The original provision plainly directs a vesting of a similar estate in the same natural objects of his bounty. And the substitutionary scheme is clearly modeled upon it, and is but written to meet the contingency of the death of any of his children before that of his widow. Ho reason suggests itself why the testator should in any way recast the scheme so far as it affected those who remained in the same relation to him. I am of opinion that the intent of the testator is that the gifts to the descendants were not suspended, but vested upon the death of the widow, and that the time of payment is but postponed. (2 Jarm. Wills [Randolph & Talcott’s 5th Am. ed.], 417, note 6 ; Hoxie v. Hoxie, 7 Paige 187, 192; Gray Perp. 73, note.) Gray (supra) says: “ In certain classes of legacies, to be paid when the legatee reaches twenty-one, or some other age named, the courts construe the gift as an absolute one to the legatee, his executors and administrators, and the direction for payment as given solely for the benefit of or on account of the legatee; that is, they regard the legacy as certain to become payable in any event — payable when the legatee reaches twenty-one (or other age), if he so long lives ; but, if he dies before that time, payable immediately to his executors or administrators. Such a legacy is properly called vested, because it is certain to take effect at some time, although the time may be earlier in one event than in another, exactly as a remainder after an estate to a widow until her death or remarriage is vested. How, the fact that such a legacy is vested is brought out in practice by the circumstance that the executor of the legatee takes it, and the incident of transmissibility has thus come to be regarded as the essential characteristic of a vested interest, and has given rise to the secondary meaning of the term ‘ vested.’ ” 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 [607] are not made joint tenants by the provision as to per stirpes, and so no minority other than their own respectively is interposed. (Van Brunt v. Van Brunt, 111 N. Y. 178, 187.) Even if the testator did attempt to create a trust estate, the trust would be illegal, and could have no force or effect upon the question at bar (Smith v. Edwards, 88 N. Y. 92, 102, 103), while the deferring of payment, through the creation of a power in trust meanwhile, is not a suspension of the absolute ownership of property. (Bliven v. Seymour, 88 N. Y. 469, 476; Vanderpoel v. Loew, 112 id. 167, 186, et seq.; Everitt v. Everitt, supra.) Note — The rest of the cases of this term will be found in volume 64 App. Div.— [Rep. The judgment must be affirmed, with costs. Goodrich, P. J., Woodward, Hirsohberg and Sewell, JJ., concurred. Judgment affirmed, with costs.