Newell v. Nichols

Davis, P. J.: This case received at the hands of the learned judge before whom it was tried at Special Term, a most elaborate and careful consideration. In disposing of it he pronounced the following opinion: u VaN Yoest, J.: Whether the remainder over to the children or heirs of Frederick A. Ridgway, Moses Ridgway and John and Henry Gunn, has become wholly legally vested in them in possession depends upon the determination of the question, as to whether or not, there was any survivorship between the two children, the mother and husband of the testatrix, who were drowned with the sinking of the steamship ‘.Schiller.’ — 611 — If they all died in tbe same moment, then neither the children nor the testatrix left heirs of their bodies living, and the remainders in question in their entirety, by the express terms of the will, vest in the children or heirs of the persons above named. Questions of doubt and perplexity have often arisen with regard to the title to property and the distribution of estates where several persons, upon the survivorship of one of whom the question rested, have perished in the same calamity, such as a shipwreck or battle, and where there was no evidence as to who died first. The civil law considex’s questions of this nature and has enunciated cei’tain rules deduced from probabilities arising from the age and difference of sex of the parties. If the persons pei’ishing were under fifteen, the eldest was presumed to survive. If all were above sixty the youngest was presumed to have survived. The French Code recognizes presumptions of survivorship growing out of the ages and sex of persons pei’ishing in a common disaster. (Kent’s Com. vol. 2, p. 435 and notes; Best on Evidence, vol. 2, § 410, and Creenleaf on Evidence, vol. 1, § 29, where the references to the French and civil law are collected.) The Code of Louisiana following the civil law, has adopted fixed rules upon this subject. (Civil Code of Louisiana, §§ 930-933.) By the law of India, where relatives perish thus together, it is presumed that they all died at the same moment and the property of each passes to his living heirs without any portion of it vesting in his companions in misfortune. (Baillies’ Law of Inheritance, 172.) By the Civil Code of Holland (§ 878), in the absence of evidence, the presumption is, that all persons die together at the same moment, and. that there is no transmission or succession from one in favor of the other. The English Common Law has never adopted these provisions. It requires the survivorship of two or more persons to be established by facts and not by any arbitrary rule or prescribed presumption. It would seem to be unsafe to rely upon any presumption arising, either from age or sex with regard to survivorship of persons exposed to a common peril by the sinking of a ship. It is true; that one might, by strength and powers of endurance survive the other, but the strongest might perish first. Experience in such — 612 — cases shows that no rule can be unalterably adopted to determine survivorship. ( Vide the numerous cases cited in Beck’s Medical Jurisprudence), on the “ presumption of survivorship,” which the author considers an “ intricate ” question. These cases show the inherent difficulty of reaching any rule upon this subject, in the entire absence of evidence, although in the end the learned author is inclined to the conclusion, that the pi’ovisions of the French Code, with some modifications, appear to. be best adapted for administering equitably in the majority of cases that may occur. (Beck’s Medical Jurisprudence, vol. 1 [12th ed.], chap. 10, p. 642.) • The subject was considered in The King v. Dr. Hay (1 W. Bl., 640; S. C., 4 Burr, 2295). General Stanwix, his second wife, and a daughter by a former wife, perished in a vessel lost at sea. No account of the manner of the perishing was ever received. Application was made for the granting of letters of administration of the effects of the General to his nephew and next of kin, on an allegation that there were no living children, wife or other relative in the same or any nearer degree. The maternal uncle and next of kin to the daughter claimed the effects under a notion of the civil law, that where parent and child perish together and the manner of death is unknown, the child shall be presumed to survive the parent. The court sustained the nephew’s claim, upon the ground of its being for the administration only and not for the distribution of the estate. An interesting argument in support of the claims of the contestants is found in Fearne’s Posthumous Works (page 38, note); Wright v. Samada (2 Salk., 593; S. C., 2 Phillimore, 266, note C), one Netkerwood made a will, leaving his wife his residuary legatee. He gave her also, his real estate for life, and appointed Samada his executor. His wife died leaving three children by him. In 1779 he married the sister of his first wife, and had issue, one son. In 1791, Netherwood, his wife and son -were lost in a vessel that had foundered at sea. Probate of the will was granted to Samada who was afterwards called upon to prove it, or show cause why the probate should not be revoked, and administration granted to the next of kin of the deceased as having died intestate. — 613 — It was claimed on tbe. bebalf of the next of kin of the father and husband, that the subsequent marriage and birth of the child revoked the will, and that the presumption was, that the husband and father survived. Sir "William: WyNNE said: £I always thought it the most natural presumption that all died together, and that none could transmit rights to another. Then what are the circumstances at his death ? He had neither wife nor children. Therefore there is nothing to raise the implication of revocation at that time. Therefore, taking into consideration, that there was no wife or child at his death, I pronounce for the will.’ (Doe v. Nepean, 5 B. & Ad., 91, 92.) In Taylor v. Diplock (2 Phillimore, 261), Taylor and his wife perished in a vessel wrecked in Falmouth harbor. The husband, left a will constituting his wife executrix and residuary legatee. A question arose whether the relatives of the husband or wife were entitled to the residue. The brothers and sisters of the husband on the one side, and the mother of the wife on the other side, prayed administration with the will annexed. The counsel for the next of kin of the husband claimed that the burthen is thrown on the adverse party, to show that there ever was a moment of time in which the property vested in the wife. Sir JohN Nicoll held, that the burthen was on the person claiming derivatively from the residuary legatee, the wife, to show that the testator left a residuary legatee; that the next of kin of the .residuary legatee is to show that the wife survived the husband. In commenting upon the evidence, the court stated: ‘ There is no evidence direct as to this point; some inferences have been deduced.' It is stated that the two bodies were found together. This tends to show, that they were in the same situation at the time of death. Upon the whole, I am not satisfied that proof is adduced that the wife survived. Takingdt to be that both died together the administration is due to the representatives of the husband. ‘ I assume they both perished in the same moment, and therefore I grant the administration to the representatives of the husband. I am not deciding that the husband survived the wife.’ In Colvin v. Procurator General (1 Hagg. Ecc. R., 92), administration of the goods of an intestate drowned together with his — 614 — wife and only ebild, was granted to a creditor of tbe bnsband on tbe presumption that tbe husband survived, tbe debt being large and tbe property small. , In the Matter of the goods of Henry Selwyn (3 Hagg. Ecc. R., 748), tbe husband and wife having been drowned together, tbe court, tbe wife’s next of bin not opposing, granted probate in common form of tbe husband’s will to tbe executors substituted in tbe event of her dying in bis lifetime, tbe will naming her executrix if living at bis decease. Per Curiam: ‘ Instances have occurred, where, under similar circumstances, tbe question has been, which of tbe two survived \ but in tbe absence of clear evidence it has generally been taken that both died in tbe same moment.’ Taylor v. Diplock (supra), was cited in support of this conclusion. In the Matter of the goods of Robert Murray (1 Curteis, 596), a husband, bis wife and child having perished together, administration was granted of tbe husband as having died a widower. Tbe husband left a will in which be bad bequeathed tbe whole of bis property to bis wife. Tbe court, on motion, granted administration with tbe will annexed to tbe next of kin of tbe husband, there being nothing to show that the wife survived, tbe next of bin of tbe wife consenting. In Satterthwaite v. Powell (1 Curteis, 705), where husband and wife were drowned by tbe same accident, it was held that tbe presumption is that they died at tbe same time, and that in order to entitle tbe next of bin of tbe husband to tbe wife’s property it must be shown that be survived her. Sir Hbebeet JeNNer said: ‘ The principle has been frequently acted upon, that when a man dies possessed of property that tbe right to that property passes to bis next of kin, unless it be shown to have passed to another by survivorship. Here tbe next of bin of tbe husband claim tbe property which was vested in tbe wife. ' That claim must be made out. Tbe parties must be presumed to have died at tbe same time, and there being nothing to show that tbe husband survived tbe wife, tbe administration must pass to her next of bin.’ In Mann v. Mann (1 Merin., 308), an issue was directed to try whether tbe son was living at tbe death of tbe testator, bis father. — 615 — the father and son baying been shipwrecked, and haying perished together, it being held that there was no legal presumption of survivorship. (Durant v. Friend, 5 De Gex & S., 343.) But by far the fullest consideration has been given to the subject in Underwood v. Wing (19 Beavan, 459), and on appeal before the chancellor and two law judges (- 4De Gex. M. & G., 633). Mr. Underwood devised his real and personal estate to the defendant W ing, his heirs, etc., etc., in trust for his wife, her heirs, etc., etc., absolutely. But the will provided that, in case the wife died in her husband’s lifetime then he directed that his real and personal estate should be held by his trustee upon trust for such of his children as, being sons or a son, should attain the age of twenty-one years, and being a daughter should attain that age, to be equally divided among them, share and share alike; and in case all his children should die under twenty-one, then the property was given to William Wing. The testator appointed his wife and Wing executrix and executor. Mrs. Underwood devised and bequeathed all her estate, real and personal, to her husband, his heirs, etc., etc., absolutely; and her will proceeded in these words : ‘ (Subject to the estates and interests of my children therein, under and by virtue of the will of John Tully, deceased); and in case my said husband shall die in my lifetime, then I devise, bequeath and appoint the said hereditaments,’ etc., etc., £unto and to the use of William Wing, his heirs,’ etc., etc. The testatrix appointed her husband and Wing executors. Underwood, his wife and then* three children embarked on a ship for Australia, which foundered at sea, and, with the exception of one sailor, all on board, including Mr. and Mrs. Underwood and their two sons, were washed into the ocean by the same wave. The daughter survived, but perished a short time afterward. All the children died under twetity-one, unmarried. Wing proved the wills of Mr. and Mrs. Underwood. The plaintiff obtained letters of administration of the daughter, the surviving child. Plaintiff insisted that Mr. and Mrs. Underwood died simultaneously, and that the event had not happened on which Mrs. Underwood had bequeathed her property to Mr. Wing; and that Mrs. — 616 — Underwood died intestate as to ber interest in ber separate property, and it belonged to tbe plaintiff as administrator of tbe surviving daughter. Plaintiff also contended tbat tbe limitations and bequests in tbe will of Mrs. Underwood, for tbe benefit of Wing, were wholly contingent and dependent upon tbe event which, it was insisted, bad not happened — of Mrs. Underwood dying in tbe lifetime of ber husband; and tbat, under tbe circumstances, tbe clear residue of Mr. Underwood’s personal estate belonged to tbe estate of bis daughter, as bis sole next of kin surviving him. It was claimed, on tbe behalf of tbe defendant Wing, tbat Mr. Underwood survived bis wife, and tbat ber property passed, in tbe first instance, to tbe husband, and afterward passed, together with tbe husband’s property, to tbe defendant Wing. Tbe Master of tbe Nolls, among other tilings, said: * All tbe reported cases concur in this, tbat in such a state of things, it is impossible for tbe court to come to any conclusion as to which died first. ‘ Tbe result is, tbat it being impossible, in the absence of any evidence on tbe subject, to come to tbe conclusion tbat one died before tbe other, no decision can be formed on tbe assumption tbat cither was tbe survivor. ‘ My opinion is tbat I must consider tbat there is no evidence to show me who is tbe survivor, and tbe conclusion of law is tbat I cannot found any decision on tbe assumption tbat either was tbe survivor. Tbe result is, tbat I think tbe defendant lias not made out tbat tbe contingency has arisen on which bis title depends, and I must make a decree accordingly.’ Upon appeal, tbe judgment of tbe Master of tbe Nolls was affirmed. It was there decided tbat tbe question of survivorship is tbe subject of evidence to be produced before tbe tribunal which is to decide upon it, and which is to determine it, as any other fact, and tbat there was no evidence to show whether tbe husband or tbe wife was tbe survivor. Tbe Chancellor, Lord CraNWOR;th, on tbe appeal, in considering the question as to upon whom the burden of proof rests, said : ‘ I think tbe principle once being admitted, tbat the prima facie title is — 617 — in the nest of kin, that it must rest on the person who claims the property, under a bequest giving it to him in that particular event. It is not for the next of kin to show'that the wife did not die in her husband’s lifetime ; but that the person who claims under the disposition must show, not that probably it might be one way or the other, but that that state of circumstances did in fact occur which entitles him, according to the language of the will, to say that the wife did die in her husband’s lifetime.’ And in Wing v. Angrave (8 H. L. Cases, 183) after full examination the judgment in Underwood v. Wing was approved, and the principle of the decision distinctly affirmed. I have been thus careful to examine and collect together these cases from the English courts, so as to deduce the rule of law applicable to cases of this character. And I conclude that they establish that there is no presumption of law, arising from age or sex,' as to the survivorship among persons whose death is occasioned by one and the same cause; nor is there any presumption that they all died at the same time, and that the burden of proof is on the one asserting the affirmative. The result is well stated by Mr. Best, in his Principles of Evidence : ‘ When, therefore, a party on whom lies the onus of proving the survivorship of one individual over another, has no other evidence than the assumption that from age or sex one individual must have struggled longer against death than his companion, he cannot succeed. But, on the other hand, it is not correct to suppose that the law presumes both to have perished at the same moment. This would be essentially an artificial presumption against manifest probability.’ And the American cases, limited in number, are substantially to the same effect. (Coye v. Leach, 8 Metc., 371; Smith v. Croom, 7 Florida, 81, 180; Pell v. Ball, 1 Chevy [Eq.], 99 ; Robinson v. Gallier, 2 Wood C. C. R., 178; Southern Law Rev., vol. 11 [N. S., 1876-77, p.594]; N. Y. Legal Observer, vol. 3 [1845], p. 269.) In the case of Moehring v. Mitchell (1 Barb. Ch., 270), the only' LÑTew York case to which I have been referred, or which I have been able to find on this subject, the chancellor says, upon a certain contingency: ‘ It would have been unnecessary, perhaps, to inquire — 618 — whether there is any legal presumption that the husband survived the wife when they have both perished by the same disaster, and when there is no extrinsic evidence to guide the judgment of the court upon this matter of fact; ” but in the case before him, he said it was unnecessary “ to inquire whether it must be presumed that the husband survived his wife.” The Chancellor cites the cases of Taylor v. Diplock, Alvin v. The King’s Procurator, and Selwin’s case (supra), as favoring a legal presumption in such a case in favor of the survivorship of the husband, upon the presumed ground, “ that the greater strength of the male would probably enable him to sustain life the longest in such a calamity.” But a close examination of those cases shows that their disposition did not turn upon any such legal presumption, but, in reality, upon a failure of satisfactory evidence to establish a survivorship in fact. And as far as Sillick v. Booth (1 Young & Col., 117) favors any presumption of survivorship arising from age or sex, it must be considered as overruled by Underwood v. Wing, and Wing v. Angrave (supra) which embraces the most thorough and satisfactory examination of this question. In the case at bar, there being no legal presumption of survivor-ship, no rights could have been transmitted by one child to the other, nor to his or her heirs or next of kin, and under the authorities above cited, the burthen of establishing a survivorship rests upon the party who claims any portion of the estate through such fact. The real contention in this case, as developed on the trial and in the argument of the counsel for the respective parties, involves the principal sum of the three trust funds directed to be invested for the children and husband of the testatrix. Those claiming as next of kin and heirs of the two children of the testatrix, as well as those claiming to stand in the same relation, to the testati i.x herself are before the court. The personal representatives, next of kin and heirs at law of the two children on the one hand, and on the other, the children of Frederick A. Bidgway and Moses Bidgway and the hems of John and Henry Gunn, make claims radically conflicting. The claim of the latter is under the will of the testatrix, by which the remainder over in default of heirs of the bodies of the — 619 — children and of the testatrix living at the time of the death of the children respectively is devised and bequeathed to them. The claim of the heirs and personal representatives of the two children of the testatrix is interposed in opposition to the will, and upon the supposed ground of intestacy as to the property in question upon the deaths of the two children. And here they arc met by those claiming as heirs at law and next of kin of the testatrix herself, who in such event affirmatively claim the estate. If the claim of the heirs at law and personal representatives of either of the two children be founded upon the notion, that oné child left the other surviving as the living heir of the body of the testatrix, and as such, entitled to the share held in trust for the life of the deceased child, the onus of proving the fact of such survivorship would doubtless rest upon the party affirming such fact. But the claim made by the representatives of the two children and their heirs at law is, that upon the death of the testatrix the whole estate embraced in the trust descended to and vested in the two children as her sole heirs at law, and remained so vested, subject to the execution of the trusts or powers created and imposed for the life of each, which estate for life terminated at the death of the children, and that the burthen is cast upon the remainder-men to prove the happening of the events or contingencies, or the existence of the defaults which entitle them or any of them to the whole or any part of the estate. In other words, that it is cast upon them to prove, not an affirmative fact of survivorship, but rather a negative, that there was, in fact, as to the children, no survivorship. For if there was no survivorship, if both children perished in the same moment, then there was no living heir remaining of the body of the testatrix. This involves a construction of the will. It seems reasonably clear, under the provisions of the will, that it was not the intention of the testatrix to vest the substance of her gifts in her children or her husband, but in the issue of her children, and in default of issue in those whom the children should appoint, and in default of such appointment and of heirs of liei body, in those in whose favor the remainder over was limited. Not only by the express terms of the will, but also by a neces — 620 — sary implication, arising from tbe duties imposed. Tbe title to tbe estate in question vested in tbe trustees and must needs continue in them until tbe purposes of tbe trust were accomplished, and that at least so long as tbe children lived. No title or interest in law vested in tbe cestuis que trust, tbe children and husband of tbe testatrix. They acquired equities under tbe will, but no legal estate in tbe property itself. (1 R. S., 729, § 60 ; Amory v. Lord, 5 Seld,, 403 ; Knox v. Jones, 47 N. Y., 396.) To bold that tbe title to this property vested in tbe beneficiaries would, I think, be in manifest opposition to tbe intention of tbe testatrix. From tbe death of tbe testatrix tbe legal title was in tbe trustees and so remained until tbe death of tbe children and husband, and the heirs at law and personal representatives or next of kin of tbe children take nothing under tbe will unless one child died in tbe lifetime of tbe other, in which event tbe personal representatives of tbe surviving child would administer, under tbe statute, its share in tbe personal estate to which it was entitled as tbe only living heir of tbe body of tbe testatrix, and tbe heirs at law of tbe survivor would succeed to its share of tbe real estate. But tbe burden of proving such survivorship, as already stated, must rest upon those who affirm tbe fact and claim thereunder. Tbe trust was active and legal in its inception and purposes, as was tbe disposition over of tbe remainder, and on tbe happening of tbe contingencies contemplated, that is, upon tbe death of tbe children without issue and without heirs of tbe body of tbe testatrix then living, tbe estate in tbe trustees was ended and tbe remainder over vested in possession in those in whose favor it was limited. In tbe cases of Underwood v. Wing, and Wing v. Angrave (supra), one of tbe conditions upon which tbe estate over was given to Wing was, that Mrs. Underwood should die in tbe lifetime of her husband. This was considered to be a condition precedent to tbe consummation and vesting of tbe gift. In that case a child (tbe daughter) survived, for a brief period, her parents and brothers. Failing tbe gift over, she, as next of kin and heir at law, became legally invested with tbe estate. She bad tbe prima facie right to tbe property, and claim was made by her legal — 621 — representatives. The daughter’s right to the property was absolute, unless the property was conveyed away by the will. Hence, it was incumbent upon those claiming under the will, to show that the condition upon which the estate was given to Wing, namely, the death of the wife in the lifetime of her husband, had occurred. In the case at bar, the gift over is a contingent estate in remainder, depending upon the ultimate event of there being no heirs of the body of the testatrix at the death of her children (1 Rev. Stat., 723, §§ 9, 10, 11, 13; Powers v. Bergen, 6 N. Y., 360; Leslie v Marshall, 31 Barb., 560), and is construed to bo a conditional limitation. A remainder may be limited on a contingency, which, in case it should happen wall operate to abridge or determine the precedent estate, and every such remainder shall be construed a conditional limitation and shall have the same effect as such limitation would, have by law. (1 Rev. Stat., 125, § 27.) And á conditional limitation carries the estate over to the persons to whom it is limited upon the happening of the contingency. (4 Kent’s Com., 127; Washburne onEeal Property, vol. 11, pp. 20, 22, and cases cited.) If, upon failure of that upon which the estate is made to depend, no matter how expressed, the land is to go to a 'third person, this is a limitation over and not a condition. It was an inflexible -rule of the common law that the remainder must vest at the moment — if not sooner vested — of the determination of the precedent estate, or else it could not vest at all. (Camphell v. Rawdon, 18 N. Y., 418.) Such estates were liable to be defeated by circumstances subsequent to their creation, but the validity of the limitation is never questioned. (Id.) But for the subsequent limitation to the Bidgways and Gunns the property would have passed to the residuary legatees or heirs at law. But that I imitation does not fail because the precedent estate did not take effect. Where a devise is limited to take effect upon a condition or contingency annexed to a preceding estate, if that preceding estate should not arise the remainder over will take place — the first estate being considered as a preceding limitation and not as a preceding condition. (Norris v. Beyea, 13 N. Y., 287 ; Warren v. Rudall, 4 Ray & Johnson, 603; S. C., Law Journal [1859, N. S.], vol. 28, part 1, p. 70; Buckworth v. Thirkell, 3 Bos. & Pull., 652; note.] — 622 — As when a testator meant to dispose of all his property and uses the words “ if the legatee should not survive,” held to mean “ if the preceding legacy should from any cause fail.” (Avelyn v. Ward, 1 Vesey, Sr, 419; Rickman v. Morgan, 2 Brown’s Ch. Cas., 396 ; Jones v. Westcombe, 1 Eq. Abbt., 245 ; Foster v. Cook, 3 Brown’s Ch., 347; Doo v. Brabant, 3 Bro. C. C., 397; Taylor v. Taylor, A. & R., 386; Jackson ex dem. Beach v. Durland, 2 Johns. Cases, 314.) The disposition made by the will of the property during the lives of the children being legal, in whom could the estate vest under the facts when liberated from the trust by the death of the children, other than those to whom the remainder was limited ? No one can lawfully claim in opposition to the remainder-men, except through one of the children as a survivor. Eor unless one child survived there was no living heir of the body of the testratrix. There can be no new stock of descent except through a surviving child, and in order to lay the foundation for such claim the fact must be proven by the person claiming. There can be no presumption of such survivorship. In the case of Underwood v. Wing, there was a child who survived, who, as heir or next of kin, had theprima facie right, and through whom her legal representative and next of kin claimed. Here there is no evidence of the existence of a surviving heir of the body of the testatrix through whom his or her legal representatives or next of kin may claim through a prima facie right. Who are the heirs or next of kin in whom the legal estate can vest, to the exclusion of those, in whose favor the remainder is limited ? And of whom are they such heirs or next of kin — the son, or the daughter? They might be 'such as well of the son as the daughter. It is the merest speculation or conjecture as to whether there was a survivorship at all, and both cannot be entitled. Nor is the necessity of proving a survivorship wholly obviated through an attempted solution of the difficulty by adjudging an intestacy as to the remainder at the death of the children. In such condition the obstacle is not overcome, but only postponed. The legal title was not in the children, and they had nothing, if they perished in the same moment, to transmit. — 623 — In the case of White v. Howard (infra) it was held that a remainder in four-sixths of the real estate of the testator, contingent upon the death of his daugher leaving no descendants her surviving, was not embraced in the trust created by the testator, as the devisees were incapable of taking, and the remainder was undisposed of by the will. The daughter was the sole heir. She became seized at the death of the testator of this remainder as the heir of her father ; and being so seized, upon her death the estate went to her heirs. But it is obvious that this result was reached only through the original invalidity of the devise over, the devisees, four charitable societies, being incapable by law of taking by devise. Bat in the case we are considering there is no inherent invalidity in the gift, as the remainder-men are capable of taking. But if it be adjudged that from the difficulty only in carrying it into effect, and not from any invalidity on the part of the persons to take the remainder, the testamentary disposition must fail, then the next of kin and heirs at law of the surviving child would, in the first instance, take. But if the life estate was terminated by the death of both in the same instant — they being not seized or possessed of the estate — then the heirs at law and next of kin of the testatrix take. But they can only take on the contingency which limits the remainder to the children and heirs of the Bidgways and Gunns ; and such adjudication, while it would clearly defeat the intention of the testatrix, would work needless injustice. In Wright v. Samada, Taylor v. Diplock, and Satterthwaite v. Powell (supra), the effect of the decisions is to cast the burden of proof upon the next of kin who derive title through a survivorship of one out of several lost in a common calamity, to prove the fact. The intention of the testatrix is clear. She desired that her property should go, in the first place, to her direct descendants, heirs of her body, and only when there was no such descendants, it should go to her collateral blood relatives designated by her. Those who claim affirmatively that at the respective deaths of the two children there were heirs of the body of the testatrix, through whom they are entitled to succeed, must show it. Those to whom the remainder is devised and bequeathed make out a case to entitle them to the estate, when they prove the loss of — 624 — the issue of the body of the testatrix by the same disaster, as under such circumstances, without proof of survivorship, the default contemplated has occurred — the limitation to the heirs of the body of the testatrix has failed, and the remainder over to the Kidgways and Gunns must be held to have taken effect. The question whether the real estate, by the provisions of the will, was equitably converted into personal, was argued on the hearing. To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty and be obligatory upon the trustees to sell in any event; amere discretionary power of selling produces no such effect. ( White v. Howard, 46 N. Y., 144, 162.) I do not find in the will any such absolute duty or obligation to sell. The direction is to set apart, sell, mortgage, lease or otherwise dispose of same, as by the trustees might be deemed advisable They doubtless had the power to sell, but were not obliged to do so, if in theii' judgment the purposes of the will could be accomplished by setting apart, mortgaging or leasing. And not having been sold there is no equitable conversion of the real estate, and the property must be viewed as it was at the death of the testatrix. (Harris v. Clarck, 3 Selden, 242.) But under the views above expressed, I do not see that it changes the result, whether the property was equitably converted or not. By the expression in the will, “ to the children or heirs of Frederick A. Bidgway, Moses Bidgway, John Gunn and Henry Gunn,” is meant to the children or heirs of each of those persons. Any other construction would be contrary to the evident intention of the testatrix, especially so in view of the fact in evidence, that John Gunn had been dead several years when the will was executed. The devisees take per stirpes, and not per capita; and one-fourth part óf the estate in remainder belongs to the children or heirs of each of the persons above named. (2 Kent’s Com., 425 ; Bool v. Mix, 17 Wend., 119; Fissel's Appeal, 27 Penn. Stat. R., 55 ; Bassett v. Granger, 100 Mass., 348.) The legacies of $5,000 to Alfred Baumgarten and of $3,000 to Mrs. Louisa Bartlett are valid, and should be paid, if not already satisfied, before any distribution of the estate between the persons to whom the remainder is given. — 625 — The silverware belonging to Mrs. Walter, and in tbe possession of tbe executors, under ber husband’s will, should be delivered to her surviving executors, to be disposed of by them as a portion of ber estate. Tbe case shows that tbe trustees did not sell tbe real estate, or create, by a conversion of tbe property of tbe testatrix, tbe investments contemplated by ber for ber children and bus-band. Their efforts to sell tbe real estate to this end, proved unavailing. There is no proof of any negligence on their part in this matter, and it is urged, on their behalf, that tbe whole estate was not of a sufficient value to raise tbe amounts. Tbe rule is3 without doubt, that where trustees, under a will are directed to make investments to a specific amount out of property and funds sufficient for tbe purpose — tbe income of which is directed to be paid to persons designated, that such persons are entitled to legal interest on tbe amount directed to be invested. Sometimes, howevei’, tbe rate is adjusted at five or six per cent. But if tbe estate was insufficient to raise tbe funds for such investment, such rule is not applicable. No investment having been specifically made, and tbe character of tbe estate as it came into tbe bands of tbe trustees not having been materially changed, tbe income of tbe whole estate, after payment of debts and specific legacies, should be passed to tbe credit of tbe cestui que trust up to tbe time of their death, to an amount equal to six per centum per annum upon tbe sum directed to be invested, from tbe death of tbe testatrix. But if insufficient to pay such amount, I do not think that tbe deficiency should be made a charge upon or be paid out of tbe corpus of the estate. Tbe value and condition of tbe estate does not justify any such direction. If correct in tbe viéw above expressed, tbe power of sale with which tbe executors were clothed, cannot now be exercised, as tbe realty lias passed over to those to whom tbe remainder was given. Tbe power to sell was given only to raise tbe moneys, out of -which tbe investmeuts directed were to be made. But as that exigency now no longer exists, tbe cestui que trust being dead, there is no occasion for tbe exercise of tbe power. Nor is any conveyance from tbe trustees necessary, as their estate terminated with tbe death of tbe father and children. A reference — 626 — is needed to pass npon and settle the accounts of the executors and trustees, to the end that they may be relieved of future duty and care, and the estate closed. Which reference may extend, if it be desired, to an inquiry as to the nature and value of the estate at the death of the testatrix, and as to what, if any, part thereof has been sold or otherwise disposed of, and as to its present value and condition, and the income received therefrom and the charge thereon. The particulars of the reference to be settled by the judgment to be entered therein.” Our examination has led us to the same conclusions reached by Mr. Justice Yan Yorst, both upon the law and facts of the case. The questions involved are intricate and interesting. The opinion above quoted discusses them with marked clearness and ability, and exhibits the most commendable care and research. We are not disposed to impair its value to the profession by entering upon any new or further discussion, but content ourselves with adopting it as a full and satisfactory expression of the views of this court. The judgment appealed from should be affirmed, but under the circumstances of the case the costs of the appeal on both sides should be paid out of the fund. Ordered accordingly. Daniels and Bradt, JJ., concurred. Judgment affirmed, with costs of appeal on both sides to be paid out of the fund.