Brown v. Nicholson

DANIELS, J.: The learned referee, in substance, held that the testator, Samuel Nicholson, designed that his estate should be distributed on the death of his surviving sister, and for that reason, under a more power of appointment, she could not prevent such a distribution by the creation of an intervening trust. And that conclusion appears to have been warranted by the terms of the testator’s will. By the disposition and division which the referee directed should be made of the fund which constituted the estate, he also held, in substance, that the fund did not become vested in the ultimate legatees in remainder until the decease of the testator’s surviving sister. And concerning the accuracy of that conclusion a difference of opinion appears to exist. If the referee is right, then neither the husband nor the wives of the persons who died during the lifetime of the testator’s surviving sister have any right to participate in the distribution of the fund. Whether he is or not, must depend upon the time when the title in remainder to the fund became vested. If that occurred on the decease of the testator, Samuel Nicholson, then the referee was necessarily wrong in the distribution directed to be made by his report. But if the title in remainder did not vest, until the decease of the testator’s surviving sister, then the conclusion of the referee was right and should not be disturbed. The testator, in terms, made no present gift of the fund. But he divided it for life between his two sisters, who survived him, while they lived, and gave the whole fund for life to the survivor of them. At the decease of the survivor he directed “ that the moneys so bequeathed my said sisters be distributed to or among such of the children of my deceased brother William or their (said children) representatives as the survivor of my said sisters shall by will or writing in the nature thereof direct. And in default of such writing then that such moneys be distributed among such children or their representatives per stirpes and not per capita, equally, share and share alike. That is to say, I design the sum of $100,000 for my said sisters to be divided between them while both are alive, to pass to the survivor on the death of one of them. And to be distributed on the death of such survivor, as afore provided, among the children of my brother William.” The primary purpose of the testator evidently was, that the fund [467] sbonld be distributed among such of his brother William’s children, and their descendants, as should be appointed to receive it, under the power given to his surviving sister. Until that power was either executed, or there was a failure to execute it, the disposition of the remainder in the fund was contingent and uncertain. It was not given to all the children of William and their descendants unless a selection from among them should be made by virtue of the power. But the design was that the persons nominated by his surviving sister should be the recipients of the fund. And it was only in case she failed to exercise the authority given to her over it that the fund was to be distributed among all the children of William and their descendants. Until the time of that failure it could not be known whether the fund was to be distributed among all, or only a portion of the persons referred to. And either distribution, by the clear import of the terms used, was to be confined to the children, and the representatives or descendants of the deceased children, of William. The persons, in any event, who were entitled to participate in the distribution, must be either children or the representatives of children of the testator’s brother William. And that was to be their relation at the time when the distribution was required to be made, which was on the decease of the surviving sister of the testator. They were then to be children, or the representatives of the children of William, and that, as well as the contingency resulting from the power of appointment, excluded those who died before the decease of the testator’s surviving sister. That was apparently the intention of the testator. It was quite clearly indicated by the terms used for- the purpose of defining and controlling the gift, as they were employed in the will. It was made to take effect at the decease of his surviving sister, and then only to extend to all the children and their descendants, in case she failed to exercise the power of appointment given to her. Futurity was annexed to the substance of the gift, and for that reason it did not and could not vest until it should become known who were the persons to receive the property designed to be given. (Everitt v. Everitt, 29 N. Y., 39, 75 ; 2 Redfield on Wills [2d ed.], 10-12.) The case of Barker v. Woods (1 Sandf. Ch., 129), is not controlling in a controversy of this description, for the reagpn, that the remainder, after the expira [468] tion of the life estates, was not given to other persons within the signification of the rule there mentioned. It was given to no one until the decease of the surviving sister of the testator, and then it was restrained and confined to the persons who should, at that time, be either children or the representatives of deceased children of his brother William. Such of those children were intended to participate in the distribution as the surviving sister should appoint, or if no appointment were made then all were to enj oy the bounty of the testator from whom the selection might be made. That power of selection was limited to the children living when it might be exercised; and the right to participate in the distribution of the fund in no event was to extend beyond them. The judgment entered upon the referee’s report should therefore be affirmed. Davis, P. J., concurred.