
    (109 App. Div. 566.)
    In re COOPER’S WILL. In re BOWERS.
    (Supreme Court, Appellate Division, First Department.
    December 8, 1905.)
    Wills—Construction—Remainder.
    Under a will giving the residuary estate to the executors, in trust to pay the income to B. for life, and providing, “From and after the death of B., I direct my executors and trustees to convey my entire residuary estate, with all accumulations of interest then on hand, to my heirs at law and next of kin, whomsoever they may be,” the gift over after the death of the life tenant is to testator’s next of kin living at the death of the life tenant
    
      Appeal from Surrogate’s Court, New York County.
    In the matter of the judicial settlement of the account of proceedings of John M. Bowers, as sole surviving executor of and trustee under the will of William B. Cooper, Jr., deceased. From the decree ordering distribution of the estate, appeal is taken.
    Affirmed.
    Argued before O’BRIEN, P. J., and PATTERSON, INGRAHAM, CLARKE, and HOUGHTON, JJ. .
    James W. Gerard, for appellants.
    James E. Duross, for respondent executrix.
    Latham G. Reed, for respondent trustee.
   PATTERSON, J.

By a decree of a súrrogate of the county of New York distribution was made of the estate of William B. Cooper, Jr. The decree declares that the respondent, Matilda H. Cooper, as executrix of Edward A. Cooper, is entitled to share in the distribution of the estate. The determination of the surrogate necessarily involved the construction of a clause' of Mr. Cooper’s will. After directing the payment of his debts and funeral expenses, the testator gave a legacy to his friend Harriette L. Berlin, and then all the rest, residue, and remainder of his estate, of every name and nature, to his executors upon special trust and confidence to enter in and upon the same, to sell and dispose of the real estate, to get in and dispose of the personal property, and to have and to hold the same, to receive the rents, issues, and profits thereof, or arising therefrom, or arising from any reinvestment thereof, and after taking a reasonable compensation, which the testator fixed at 5 per cent., both upon corpus and income, in lieu of the statutory commissions, to apply the said net income, rents, issues and profits to the use of Harriette L. Berlin for and during the term of her natural life. The testator then provided as follows:

“From and after the death of the said Harriette L. Berlin, I direct my executors and trustees, and the survivor of them, and his successor and successors, to transfer, set over, and convey my entire residuary estate, with all accumulations of income then on hand, to my heirs at law and next of kin, whomsoever they may be.”

The testator died on the 25th day of September, 1891. Mrs. Berlin, the primary beneficiary, died on the 9th day of August, 1904. Edward A. Cooper, a brother of' the testator, died during the lifetime of Harriette L. Berlin, namely, on the 20th of January, 1902, leaving a last will and testament by which he appointed his wife, Matilda H. Cooper, his executrix and sole legatee. The testator’s sisters, Katherine M. and Alice B., and his brother, Theodore P. Cooper, and a nephew, Henry W. Cooper, son of a' deceased brother, survived Mrs. Berlin, the life beneficiary. The question now arising is: Who are entitled under the clause of the will above quoted to take the interests in remainder? The surrogate found that Matilda H. Cooper was entitled to take a share under the will of her husband, for the reason that the remainders were vested in all the brothers and sisters of the testator. In other words, the question is whether the estate should be divided into five parts, or be wholly divided among the four persons answering the description of next of kin at the death of Mrs. Berlin.

The inquiry is, of course, to ascertain the intention of the testator, and it seems to us that the learned surrogate was wrong in his inclusion of Edward A. Cooper as one of the next of kin. It is quite apparent, from the structure of the instrument, that the primary object of the testator was to provide for Mrs. Berlin. The estate was. in the trustees for the purpose of the trust. There is no gift of a remainder that vested either in interest or possession until Mrs. Berlin’s death, and unless we entirely misconstrue the meaning of the testator he so intended. The gift over is after the death of the life tenant, and is to be found only in the direction to convey. It is not the case of the death of a life beneficiary in the lifetime of' the testator, but here is a specific direction to convey on the expiration of a trust term an estate to those then entitled to take, or, as the testator says in his own words, “whomsoever they may lie.” Words of futurity are annexed to the gift, and it is plain, we think, that the testator did not intend thát there should be an ascertainment of the persons who would take ultimately until after the death of the life beneficiary and the expiration of the trust for her benefit. Then the corpus was to be transferred to those who would be heirs at law or next of kin, “whomsoever they may be,” not “whomsoever they now are.” We are to give effect to wills according to the intention of the testator, and not according to what we think might be a proper testamentary disposition. Tiñere was no vesting of remainders in this case, such as would include the deceased brother of the testator. The learned surrogate say that the testator was quite indifferent as to who the persons should be who would respond to the description of heirs at law or next of kin, and in that remark we concur; but the testator manifestly left it to those who as his then next of kin could take upon the death of-Mrs. Berlin.

There is an appeal concerning the commissions awarded to the executor ; but, as that has been withdrawn by a written stipulation filed with this court, it will not be given further consideration. The decree of the surrogate is affirmed so far as the executor’s commissions are involved, and it is reversed so far as the distribution is allowed among the five, instead of four, persons answering the description of next of kin of the testator at the time of the expiration of the trust estate, with costs to the appellant and executor to be paid out of the estate.

Decree modified accordingly. All concur.  