Boies v. Wilcox

By the Court, James C. Smith, J. I think the authorities sustain the position taken by the appellants’ counsel, that by the fourth and seventh subdivisions of the will, the residuary estate of the testatrix vested, at her death, in the son, subject only to be divested upon the happening of the contingencies specified in the fifth and sixth subdivisions of the will, to wit: (1.) The death of the child under the age of twenty-one years, and (2.) The survivorship of his. father. The bare terms of the gift to the son, “ incase he lives until he arrives at the age of twenty-one years,” standing alone, would not warrant the construction above stated; but taken in connection with the provisions of the will constituting the father the testamentary guardian of the child, and conferring upon him the entire management and control of the property given to his ward, for the support, education and necessary use of the latter during his minority, they operate to vest the property in the son. It will be observed that the terms of the power are sufficiently broad to authorize the guardian to appropriate not only the interest, but also any portion of the principal, or even the whole of it, if necessaiy to the use of the legatee, during his minority. This disposition of the property must be considered an indication of the testator’s intention that the legatee should at all events have the principal. (Patterson v. Ellis, 11 Wend. 259. Burrill v. Sheil, 2 Barb. 457, 462,. 470-472.) The death of the father in the lifetime of the son, prevents the happening of the only contingency by which the estate of the latter could be divested. The son having since died, the property goes to his legal representatives, who are the appellants. Upon the happening of the same contingency, to wit, the death of the son under twenty-one, and the survivorship of the father, depended the estate of the respondents, and as that contingency has not happened, and never can happen, [292] they can never take. (See Wolfe v. Van Nostrand, 2 Comst. Rep. 436.) [Monroe General Term, June 11, 1863. The decree of the surrogate must he reversed, and the proceedings remitted to him, &c. Ordered accordingly. E. Darwin Smith, Johnson and J.C. Smith, Justices.]