In re the Judicial Settlement of the Account of Proceedings of Benner

Strong, S.— A construction of the fifth clause of decedent’s will is sought in this proceeding. The clause reads as follows : “ Fifth. I give and bequeath to said Willis Benner the sum of Five Thousand Dollars, upon trust nevertheless to invest the same upon bond and mortgage on real estate and to collect the income from such investments and to pay over the same in quarter yearly payments to my cousin Fannie C. Dayton of Mattituek, Suffolk County, ¡New York, for and during her natural life, and immediately upon her death to pay over said sum of Five Thousand Dollars in equal shares to the children of said Fannie C. Dayton, and the issue of such of said children as may have died, such issue taking his, her or their parent’s sharé.” Fannie C. Dayton died leaving three children her surviving, and the husband of a deceased daughter, the deceased daughter leaving no children her surviving and dying intestate. Although the law favors the vesting of remainders, where possible (Marsh v. Consumers Park Brewing Co., 162 App. Div. 256; Cammann v. Bailey, 210 N. Y. 19; Dickerson v. Sheehy, 209 id. 592; Fulton Trust Co. v. Phillips, 164 App. Div. 498), the provisions of the clause in this will are within the rule -that where a devise or bequest is made through a power in trust, or solely through a direction to pay or convey at a future time, it is contingent. The provision “ immediately upon her death to pay over said sum * * * in equal shares to the children * * * [266] and the issue of-such of said children as may have died, such issue taking his, her or their parent’s share,” shows a clear intent of the testator that the interest of each child is to be contingent and that the estate of each child is divested and passes to the issue "upon the death of the child during the life of the cestui que trust. The reference to the issue of the child was not inserted solely for protection to the more remote descendant, hut is indicative of the intent of testator to suspend the vesting of the estate until the future happening, the decease of the life tenant. (Matter of Tienken, 131 N. Y. 391, 409; Matter of Crane, 164 id 71; Matter of Baer, 147 id. 348.) It was far from the intent of testator to permit of a contingency by which the husband of a predeceased • child should receive a share or that the legal representatives of a child should be let in.- The remainder of the trust fund should be distributed among the three surviving children share and share alike. Decreed accordingly.