
    Stephen Shangle, Appellant and Respondent, v. Daniel L. Hallock, Executor, etc., of Sybil Shaw, Deceased, and Others, Respondents and Appellants.
    
      Remainder — when rested — direction to pay at a future time—gift to individuals, not to a class — a construction involving intestacy is to be avoided — gift over — the savings of a life tenant are her own.
    
    In an action brought to obtain a construction of the will of Joseph Shaw and to recover thp share of Caroline Shangle in his estate, it appeared that the testator died in 1846, and by his will devised certain real estate to his executors with directions to lease and sell the same, to pay from the annual proceeds the interest on a bond and mortgage, and to pay over to his-wife, Sybil Shaw, the balance for her support and that of his four children so long as she remained his widow; if she remarried the whole income was to be applied to the support of the children until they were able fully to support themselves. Following these provisions was the following clause: “At the decease of my said wife, or her remarriage, in case my youngest child then living shall have arrived at the age of twenty-one years, on the happening of such event, or either thereof, I desire that the balance and remainder of my estate, both real and personal, be divided between my four children, Sarah C., William, Caroline and Elizabeth H., share and share alike. But in case any of them shall die without children or issue before the youngest of my said children shall arrive at the age of twenty-one years, then and in such event the portion of such deceased child or children is to he divided equally among the survivors or survivor and the heirs of such of them as shall have died leaving issue of their own bodies per stirpes and not per capita.”
    
    Sybil Shaw did not remarry and died testate in 1892. The plaintiff married in 1858 Caroline Shaw, who died intestate in 1880, leaving her surviving the plaintiff and one child, Caroline L. Shangle, her only heir at law, who died intestate and without issue in 1882 and left the plaintiff, her father, her only heir at law. All the children of Joseph Shaw reached majority before the death of Caroline Shangle. The plaintiff claimed to have acquired through Caroline Shangle, or as her administrator, one-fourth of the estate of Joseph Shaw, and the court sustained this claim. He also claimed to recover one-fourth of the savings which Sybil Shaw had accumulated during her life from the income of the trust estate, hut this claim the court rejected.
    
      Held, that the judgment was correct;
    That it was the intention of the testator that Sybil Shaw should have, during her widowhood, the whole income of his property, and that, upon her death or remarriage, the property should pass to his four children in equal shares; that the interest of each child should vest forthwith and become absolute, except that, if any of his children should die without issue before his youngest child reached majority, the portion of the deceased child should go to the other children who survived and to the issue of such as had died;
    
      That the interest of Caroline Shangle vested at once, and was not contingent upon-her being alive at the time specified for division;
    That this was an exception to the general rule of construction, that where there was no gift, but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting would not take place until that time arrived;
    That, conceding that the devise of the remainder was contingent on the legatee or devisee living till the time of division, the primary gift, the direction to divide at the death or remarriage of the mother, being to the testator’s four children, by name, the gift was not to- a class, but distributively to each of them, and hence if one of such children died before the time fixed for division, his share would not pass to the survivors, but that as to such share the testator would die intestate;
    That the court would lay hold of any expression in or provision of a will that could properly be used for that purpose, to prevent the disinheritance of the issue of the primary object of the gift in the event of that object dying before the time for distribution;
    That the gift over indicated that it was not the intention of the testator that the share of Caroline Shangle should be contingent, as that gift directed that if any child of the testator died without issue before his youngest child reached majority, the portion of the deceased child should be divided, not only among the survivors, but also among the heirs of those who had died leaving issue;
    That the general doctrine is that where a devise which; standing alone, would be contingent, is followed by a limitation over in case the devisee died during minority, the interest will be construed to vest at once;
    That the claim of the plaintiff to share in the savings of the widow from the income of the trust property was untenable, for the reason that it was the intention of the testator that his wife should have the whole income of his property during her widowhood, charged only with the support and education of the children, and that, if the widow made any savings while supporting her children, they were her own property.
    Appeal by -the plaintiff, Stephen Shangle, from so much of a judgment, of the Supreme Court, entered in the office of the cleric of the county of Kings on the 'Tth day of November, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, as declines and refuses to allow to him his share of the increase, income and profits of the estate left by Joseph' Shaw, while in the hands of Sybil Shaw. Also, an appeal by the defendants, Daniel L. Hallock, as executor, etc., of Sybil Shaw, deceased, and others, from the whole of said judgment.
    
      William C. De Witt and John Murray Mitchell, for the plaintiff.
    
      Thomas McMahon and John A. Straley, for the defendants.
   Cullen, J.:

This action is brought by the plaintiff, both individually and as administrator of Caroline Shangle, deceased, to obtain a construction of the will of Joseph Shaw, and to recover the share of the said Caroline in the estate of said Joseph Shaw. Joseph Shaw died testate on the 21st day of March, 1846, leaving him surviving his widow, Sybil Shaw, and four children. The portion of the will of said Joseph Shaw material to this controversy is as follows:

Fourth. I give, bequeath and devise all my real estate, situated in the x illage of Williamsburg, Kings county, and known on a map made by Charles Loss, city surveyor, 1807, as Lot No. 217, and my real estate known as No. 120 Allen street, in the 10th ward of the city of New York, to my executrix and executor hereinafter named, for the uses and purposes following, to wit:

“ To lease, let, bargain, sell, grant and convey the same in their discretion, and with the annual proceeds thereof, or so much of the proceeds as may be necessary, to pay the annual interest which may from time to time arise and become due on said bond and mortgage, and the balance of such annual income to pay over to my beloved wife for her support and the support and education of my children, and the survivors of them, the management and guardianship of which children are hereby confided to my said wife; but my said wife is not, in case she should remarry, to receive thereafter any support or maintenance from the income of my said property, but the whole of such income, after the payment of the aforesaid annual interest, is to be applied for the support and maintenance of my four children and the survivors and survivor of them, until they shall be able and capable of taking care of and fully supporting themselves.

Fifth. At the decease of my said wife, or her remarriage, in case my youngest child then living shall have arrived at the age of twenty-one years, on the happening of such event or either thereof, I desire that the balance and remainder of my estate, both real and personal, be divided between my four children, Sarah C., William, Caroline and Elizabeth H., share and share alike. But in case any of them shall die without children or issue before the youngest of my said children shall arrive at the age of twenty-one years, then and in such event the portion of such deceased child or children is to be divided equally among the survivors or survivor and the heirs of such of them as shall have died leaving issue of their own bodies per stirpes and not per capita.”

The widow, Sybil Shaw, died testate on the 13tli day of May, 1892, not having remarried.' The plaintiff married Caroline Shaw on the 4th day of November, 1858. Caroline Shangle died intestate on the 11th of April, 1880, leaving her surviving the plaintiff (her husband) and a child, Caroline L. Shangle, her only heir at law. On July' 23, 1882, Caroline L. Shangle died intestate, without issue, and leaving the plaintiff (her father) her only heir at law. All the testator’s children became of age before the death of Caroline Shangle.

The plaintiff claims to have acquired, either by descent from his wife,, Caroline Shangle, or as her administrator, the fourth part of the estate of Joseph Shaw. This claim the court at Special Term decided in his favor, and from that part of the judgment the defendants appeal. The plaintiff further claimed to recover one-fourth of the savings accumulated by the widow during her life out. of the income of the trust property. This claim the court at Special Term rejected, and from the judgment in this respect the plaintiff appeals.

It is first to be observed that the primary gift.,, the direction to divide at the death or remarriage of the testator’s widow, is to the testator’s four children, by name, share and share alike. The gift was, therefore, not to a class, but to each child distributively. (Delafield v. Shipman, 103 N. Y. 463; Happock v. Tucker, 59 id. 202.)

Hence, if the gift was contingent on the legatee or devisee living till the time of division, the share of the child dying before that time did' not go to the survivors. Nor in the present case did the share pass under the gift over, for Caroline did not die under twenty-one years or without issue. As to this share (assuming the devise was contingent) the deceased died intestate. It,- therefore, descended to the testator’s heirs at law, his four children, including the plaintiff’s wife. The plaintiff has unquestionably acquired by inheritance the interest of his wife in that share. So that the debatable question in this case is, not whether the plaintiff is entitled to a fourth or to none of the testator’s estate, but whether he is entitled to a quarter or a sixteenth of it.

The disposition of this question depends wholly upon the determination of the further question, whether the'share of the daughter Caroline was, at the time of her decease, vested, or contingent upon her surviving the death or remarriage of her mother, the testator’s widow. We concede the general rule asserted by the defendants’’ counsel that: “ Where there is no gift, but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives.”' (Warner v. Durant, 76 N. Y. 133; Smith v. Edwards, 88 id. 92; Shipman v. Rollins, 98 id. 311; Delafield v. Shipmam, 103 id. 463.)

But though this is .the general rule, it is subject to many exceptions. In Goebel v. Wolf (113 N. Y. 405) the testator provided for a somewhat elaborate trust to terminate on his wife’s death, or upon his youngest child reaching the age of twenty-one years, in case the wife was previously deceased; and upon either of such, events he directed his trustees to divide all his estate, real and personal, among his children, share and share alike, deducting all advances made, so that each of his children should have an equal share of the estate. The testator had previously authorized an advance of $3,000 to each child upon its marriage or arrival at the-age of twenty-one years. This direction to divide was the only gift, yet the court held the remainder vested in each child on the death of the testator. The court construed the provision for the advancement to the children and a direction that the profits should be invested for the benefit of my said children,” as well as other expressions in the will, as tending to show an intent on the part of the testator that his children’s share should vest immediately upon his. decease. Probably the most influential consideration in the disposition of the case is found in -the concluding paragraph of the-, opinion, where it is said: “ This construction also prevents the disinheritance of issue of any child who may marry and die before the-expiration of the trust period, a consequence which no one can doubt, the testator never intended.”

In The Matter of Tienken (131 N. Y. 391) the same question, again arose, and the decision followed that of Goebel v. Wolf. In relation to the general doctrine, Judge Finch writes: “We have heretofore said that the rule of construction founded upon a gift, flowing only from a direction to divide has many exceptions, and is-to be used as an aid to ascertain the intention, and. not as a force to-pervert it.” In The Matter of Young (145 N. Y. 535) the executors were directed to raise and invest for the widow a fund of $4,000, the income payable to her during life, and on her decease the said amount to be equally divided among the testator’s children, naming them. The residuary clause was as follows: “ I give to my children, Amos J. Hurlbutt, Mary Tifft and Ellen Close, within one year after the aforesaid sale of real estate and the reservation of the aforesaid $4,000 for the use. of my wife, the whole of the balance of my property not hereinbefore devised, to be equally divided between them.”

It ■ was there held that the general rule did not apply, and that the children coitld be considered as taking, under the residuary clause, the remainder in the $4,000 after the widow’s decease, and that the direction to divide was a mere postponement of the possession for the purpose of letting in, the provision for the widow.

In the opinion delivered .in that case, Judge Finch, again referring to the general rule applicable where the only gift is a direction to divide, says : “We have steadily maintained that the rule referred to is not inflexible or arbitrary, and is to be applied in subordination to the testamentary intention, and not as destructive of it. In the present case we must, therefore, take into account the other provisions of the will and the general purpose deducible from its terms.”

In the light of this recent and unbroken line of authorities in the highest court of this State, we think it may safely be affirmed that the court, in construing a will, will lay hold of any expression or provision of the will that can properly be used for the purpose, to prevent the disinheritance of the issue óf the primary object of the gift in case of that object dying before the time for distribution; and we are clear that the case at bar falls not within the general rule, but within the exception; that the remainders given the testator’s children were vested, not contingent, and subject to be divested only on the contingency provided in the gift over. A construction of a will that prevents intestacy is to be preferred to one that creates intestacy, and for this reason there must be a clear intention indicated to postpone the vesting under residuary bequests. (1 Jarman on Wills, 850.) If the remainder of Caroline was contingent, .intestacy has occurred in this case. The children among whom the division is to be made are mentioned by name. In this respect the present case is stronger than those of Goebel v. Wolf and Matter of Tienken. The construction contended for by defendants disinherits the issue of any child who died before the time of the division.

Lastly, and the controlling consideration with us, is the gift over, in case of any child dying without issue before the youngest child shall, have arrived at twenty-one years. The general doctrine is that: “ Where a devise standing alone would be contingent, yet if it be followed by a limitation over, in case he (the devisee) die under age * * * the interest in question is construed to vest instanter.” (1 Jarman on Wills, 810.) The same rule applies to bequests of personalty. (Id. 857.) And in certain cases, as when the gift over is to the heir, the gift over alone creates a devise by implication. (Id. 533.) We shall not, however, review the cases on this subject, because we think the terms of the gift over in this case are such as to leave no room for substantial doubt as to the intention of the testator.

The testator directs that in case of the death of a child without issue, before the youngest child shall have reached twenty-one, the portion of the deceased child is to be divided not only among the survivors, but also among the heirs of such of them as shall have died leaving issue of their bodies. Hence, if Sarah had died without issue before the time named, and William had died subsequently leaving issue, the issue of William would take their proportion of the share of Sarah in perfect equality with the two surviving children, the testator having been careful to provide for their rights in such a case; but in the same case, according to the construction contended for by the defendants, the children of William would lose their parent’s share; the whole share, in the opinion of the defendants; three-quarters of the share in our opinion. It is impossible to believe that the testator should have intended to thus secure the interests of the issue of his children, in case of the contingency pro-, vided in the gift over, and at the same time intended, in case of the death of their own parent, that they should be deprived of all the parent’s share in his estate. Theoretically a testator might have intended such a will, but no such unnatural and unreasonable intent should be attributed to him, except by virtue of language which admits of no misconstruction.

This will is carelessly drawi?, and under one construction of the fifth clause it may be that the provisions of the will, except the trust for the wife, are bad. We shall not discuss the question, as it has not been raised by counsel, and if the will were held to be void it would work no change in the judgment below. The result would be the same. But we think the intention of the testator clear, that is to say, his wife was to have during her widowhood the whole income of his property. Upon her death or remarriage the property was to go to his four children in equal shares, the interest of each of these children in his or her share was to be absolute, save only in the contingency provided for • in the will, in which case it was to go to the other children or the issue of deceased children. The decision of the learned court, that the share of Caroline was Vested at her decease, was, therefore, correct.

We think the claim of the plaintiff on this appeal requires no elaborate examination. The language of. the will is clear.. The balance of the income was to be paid to the widow for her support, charged only with the support and education of the children until they were able to take care of themselves. The widow could •expend the whole income, if she chose, and if she saw fit to live more cheaply, the savings were wholly her own.

The judgment appealed from should be affirmed, with' costs to all parties who have appeared, to be paid out of the fund. ' •

AH concurred, except Bartlett, J., not sitting.

Judgment affirmed, with costs.  