
    Matter of the Final Judicial Settlement of the Account of George Sandhusen, as Testamentary Trustee of the Last Will and Testament of Herman Voss, Deceased.
    (Surrogate’s Court, Kings County,
    April, 1913.)
    Wills—Residuary Clause—Trusts—Distribution of Trust Funds.
    Where by a will containing no residuary clause the executors were . given certain personal assets in trust to invest and pay the income to testator’s sister during her life, with direction that at her death the estate was to be divided into as many equal shares as the sister left children, and that each be paid his share on reaching the age of twenty-one years, upon the death of the sister leaving no children her surviving there arises' an intestacy as to the principal of the trust, distribution of which must be decreed accordingly.
    Proceeding upon the final judicial settlement of the account of a testamentary trustee.
    John E. Bullwinkel, for accountant:
    J. Fred Alsgood, for heirs and next of kin.
    James & Thomas H. Troy (James Troy, of counsel), for Hetty Meyer.
    Charles K. Terry, special guardian.
   Ketcham, S.

In the will under which this account is made there is a gift of personal assets to the executors, in trust, for the following purposes:

“A. To invest the same * * * and to pay to my sister, Anna Louise Steffens * * * all the income of my estate during her natural life.

“ B. Immediately after the death of my said sister, to divide my estate into as many equal shares as my said sister leaves children, and to pay to each of them their share or moiety as they respectively arrive at the age of twenty-one years.”

There is no residuary clause.

Anna Louise Steffens, named in the quotation supra, died after the testator, having had children, but leaving none surviving her.

The question is-presented, whether the gift to the children of Anna Louise Steffens was, as to each of such children, vested upon the testator’s death or was contingent upon survival of such children at the time of the mother’s death.

If the gift over was to a class, it was future and contingent.

“ Where final division and distribution is to be made among a class, the benefits of a will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made.” This expression, found in Matter of Baer, 147 N. Y. 348, is adopted in Salter v. Drowne, 205 id. 204.

Where, in a trust, the only gift over upon the death of a life beneficiary is contained in a direction to divide and the division is to be made among such children of a person named as shall survive their parent, there is presented with unusual distinctness a direction to divide among a class.

“ A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number.” Matter of Kimberly, 150 N. Y. 90, 93.

A provision sufficiently like the one now under examination, but less favorable to the claim of a vesting of the remainder, is considered by the Appellate Division of the first department in Cammann v. Bailey, N. Y. L. J., April 12, 1913, and is there construed to intend a contingent remainder only.

That the shares to be paid to the children of Mrs. Steffens are called “ their share ” gives no color to the contention that any share vested in any child at the testator’s death, for if without recourse to the words last quoted the only division intended by the will was one by which “ shares ” should be distributed among surviving children, the words “ their share ” would receive ample meaning if referred to the shares which would reach the children found-to be entitled. Cammann v. Bailey, supra.

Upon the death of the life tenant, leaving no children, intestacy results as to the principal of the trust, and the decree of distribution should be made accordingly.

Decreed accordingly.  