In re the Final Judicial Settlement of the Account of Troy Trust Co.

Foster, J. Appeal from a decree of the Surrogate’s Court of Rensselaer county construing the will of Crumby Bolton, deceased. The question presented is whether the corpus of a trust fund passes to the appellant, who, alone of three children mentioned in the will, survived the termination of the trust; or whether the shares of the children who predeceased the life tenant pass to the representatives of such deceased children. The trust clause is contained in the fourth paragraph of the will: “ Fourth. I hereby give and bequeath unto my executors hereinafter named, the sum of Twenty Thousand Dollars ($20,000.00) in trust, however, to take, hold, receive and invest the same in good securities, and to collect and receive the interest, income, increase and profits thereof; and pay the same over, semi-annually, from the date of my decease, to my said wife Katherine E. Bolton, for and during the period of her natural life, or as long as she shall remain my widow; and at her death, or re-marriage, I give and bequeath the same to, and direct that the same be divided between my children, Edwin A. Bolton, Milton F. Bolton and Richard D. Bolton, or the survivors of them, equally share and share alike. “ If, however, any of my said children shall die prior to the time of my decease, leaving issue him surviving, I direct that the legacy, or share in my estate which the one so dying would have taken under the provisions of this, my last Will and Testament, if living, shall go to, and be equally divided among such issue, share and share alike.” The widow did not remarry. At her death, only one son, Milton F. Bolton, survived. The other two sons, Edwin A. Bolton and Richard D.Bolton, died after the death of the testator and before the death of the widow. Edwin A. Bolton left him surviving Cora B. Connelly, his granddaughter, and Richard F. Bolton and Kenneth F. Bolton, his grandsons. Richard D. Bolton left him surviving his widow, Mabel E. Bolton. The surrogate held that at the death of the testator, his three sons who survived him each became vested in a one-third interest of the trust fund, subject to the life estate of the mother; and that the share of each of the sons who predeceased the life tenant should be paid to the representatives of his estate, and the share of Milton F. Bolton should be paid to him. This, I think, is correct. (Matter of Chalmers, 238 App. Div. 672; affd., 264 N. Y. 239; Moore v. Littel, 41 id. 66; Real Prop. Law, § 40, as made applicable by Pers. Prop. Law, § 11.) The test was stated in Moore v. Littel: “ If you can point to a man, woman or child who, if the life estate should now cease, would [762] * * * have an immediate right of possession, then the remainder is vested.” The facts here meet such test, The three sops survived the father. If the life estate of the widow then ceased they would have had the immediate right of possession. Their respective interests, therefore, vested. The law favors the vesting of estates, and unless there is a contrary intention unequivocally expressed it will not be imputed, (Matter of Watson, 262 N. Y. 284.) I can find no such contrary intention unequivocally expressed in testator’s will. His general scheme, as expressed by the various provisions of the will, was to distribute his property with fair equality among his children. That the bequest of the remainder was to his sons, "or the survivors of them,” does not.express a clear intent so as to prevent vesting. It does not necessarily mean that survival referred to the death of the life tenant. Words of survivorship, upon bequests over on the death of the life tenant, are frequently construed to refer to the death of the testator, (Runyon v. Grubb, 119 App. Div. 17; affd., 192 N. Y. 586; Moore v. Lyons, 25 Wend. 119; Matter of Woodruff, 135 Misc. 203; Matter of Mahan, 98 N. Y. 372; Matter of Wilkins, 155 Misc. 152.) I think they should be so construed here in view of the manifest intent of the testator to reach equality. Matter of Downing (235 App. Div. 185), relied upon by appellant, may be distinguished. There the devisee, or devisees of the remainder were uncertain and could only he ascertained upon the death of the life tenant. This prevented a vesting at the death of testator. The decree should be affirmed, with costs to all parties filing briefs, Crapser, Heffernan and Schenck, JJ„ concur; Hill, P. J., dissents, with an opinion.