
    Peter Van Brunt, App’lt, v. Stephen Van Brunt et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1, Will—Construction of—Trusts—When valid and not against STATUTE FORBIDDING PERPETUITIES.
    The testatrix at her decease left eight children her surviving, seven of •whom were married and had children of their "own, By her, will, after a few specific legacies, the balance of her estate was given to her executors in trust to collect and pay over the rents, incomes and profits to her children in equal proportions during their natural lives, and after their decease to their respective wives or husbands during their lives or until they should remarry. The will proceeds, “if any of my children should die without issue, or without leaving a husband or wife, him or her surviving, then I give, devise and bequeath his or her share to the survivor or survivors of them share and share alike; if he or she leave a husband, him or her surviving, then I give, devise and bequeath his or her share to the survivor or survivors of my; said children, share and share alike after the decease or remarriage of said husband or wife.” The final clause of the paragraph respects the contingency of children dying leaving issue, and gives to them per stirpes after the death or remarriage of their father or mother their parents share of the rents and profits during minority, and then their interest absolutely. Held, that the trust was valid and its limitations not too remote. That upon the death of any child, and that child’s husband or wife who was living at testatrix’s death, the portion or share of such child vested at once in his or her children, each one of such children taking his or her portion in fee, subject only to a postponement of possession during his or her minority, ana to the execution of the trust upon the rents and profits during that period. That there was no possible suspension ot the power of alienation beyond two lives in being at the death of testator, and a single minority.
    2 Same-Effect of use of indefinite article in phrase.
    The use oi the indefinite article and the expression “a husband or wife” does not maicate an intention to provide a second life interest in a wife or
    
      husband, becoming such after the death of the testatrix. It means any one of the seven in being at testatrix’s death who might be living at a child’s death or leave issue'upon his or her decease and does not include some husband or wife becoming such after the testatrix’s death. The case of the unmarried son does not change the construction of the will, for though the trust was divisible, it was created at once for all the children, and by a common description and expression. (Distinguishing Schettler v. Smith, 41 N. Y., 328.
    3. Same—When estate vested.
    The testatrix having declared that the remainders to her surviving children should vest at once upon the termination of the precedent estate's when she reached the alternative of their being issue, provides that said issue shall “represent” their parent, and when of full age “their interest shall be given to them.” Reid, that the remainder in fee vests in interest upon the termination of the precedent estates, the possession only being-postponed; that upon the death of testator each minor grandchild then living took upon the death of its father and mother a-vested estate as a remainder in fee.
    4. Same—When estate heft to minor vests.
    Where nothing is interposed between the minor and his enjoyment of his estate except his own minority the estate is vested. When dnring such minority the accruing rents and profits are given to the minor an intention to vest the corpus from which the income is to be derived is indicated more strongly.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment in favor of the defendant entered upon an order sustaining a demurrer to the complaint made at special term.
    
      Elon R. Brown, for app’lt; William C. Spencer, for respt’s.
    
      
       Affirming 14 N Y. State Rep., 887.
    
   Finch, J.

Margaret Van Brunt at her decease left eight children her surviving. Seven of the eight were married and had children of their own. By her last will some few specific legacies were given, and then the balance of the estate was disposed of by a residuary clause upon the asserted invalidity of which this action is founded. By that clause the testatrix devised and beqeathed the whole of her estate, real and personal, to her executors in trust to collect and pay over the rents, incomes and profits to her children in equal proportions during their natural lives, and after their decease to their respective wives or husbands during their lives or until they should remarry. Pausing at this point, we find as it respects each of the eight children a trust for the life of such child, followed by a second life interest to the surviving wife or husband, as the case, might be. It is conceded that ordinarily and in the absence of qualifying expressions, the husband and wife referred to in the second limitation would be one living at the death of the testatrix, and so the limitation would run, in each part of the divisible trust, for two lives in being at its creation. But this construction is claimed to be inadmissible by reason of qualifying words contained in the devise and bequest of the remainder.

The will proceeds: “If any of my children should die without issue, or without leaving a husband or wife him or her surviving, then I give, devise and bequeath his or. her share to the survivor or survivors of them, share and share alike.”

There is no defect in this limitation over of the remainder considered by itself, but the expression “a husband or wife,” is alleged to reflect back upon the construction of the second life interest and make that a limitation not upon the life of the husband or wife in being at the decease of testatrix, but upon the life of any husband or wife whom a child should thereafter marry, who might be a person born after the death of the testatrix, and so not in being when the limitation was created. And this construction is said to be fortified by the next provision, which is this: “If he or’she leave a husband him or her surviving, then I give, devise and bequeath his or her share to the survivor or survivors of my said children, share and share alike, after the decease or re-marriage of said husband or wife.”

Here, it is argued, is distinctly manifested a purpose to postpone the vesting of the remainder in possession until the death of the first life tenant, and then until the death or re-marriage of any husband or wife who may survive; and who might be'a person both born and married after the death of testatrix.

The final clause of the paragraph respects the contingency of children dying leaving issue, and gives to them per stirpes, after the death or re-marriage of their father or mother, their parent’s share of the rents and profits during minority, and then their interest absolutely.

The next paragraph of the will reads thus: “I hereby authorize and empower my said executors, hereinafter named, at any time when in their judgment it may he advisable to do so, to sell any part or all of my said personal and real estate in the last preceding paragraph referred to, and invest the proceeds arising therefrom in some good safe and sufficient security.”

One of the children now brings this action for a partition, alleging that the whole trust is void because it suspends the absolute power of alienation for more than two lives in being at its creation, .that the testatrix died intestate as to the whole residue beyond the specific bequests, and the plaintiff as heir-at-law is entitled to his proportion of the real estate.

To this complaint a demurrer was interposed on the ground that no cause of action was stated. The demurrer was sustained by the special term and that decision affirmed by the general term. The conclusion reached went upon the ground that, whatever might be true of the limitations after the first life estate, the power of alienation was not suspended because of the authority to sell conferred upon the executors by the will.

We are not prepared to give our assent to the doctrine asserted ; but without discussing that specific question, we think there is no difficulty in affirming the judgment, upon the ground that, irrespective of the power of sale, the trust is valid and its limitations not too remote.

As we have said, the words “husband and wife,”as first used in the will, would naturally and ordinarily refer to a husband and wife living at the death of the testatrix. That meaning, and the purpose evinced by it, ought not to be surrendered and changed with the consequence of a destruction -of the trust, unless other language of the will clearly and unmistakably points to a different meaning and establishes a different intention. The use of the indefinite article and the expression “ a husband or wife ” does not necessarily, or even fairly, indicate an intention to provide a second life interest in a wife or husband becoming such after the death of the testatrix. The phrase is not “any husband or wife,” but ‘ ‘ a husband or wife,” living at the death of the first tenant for life, and should be taken to refer to the same husband or wife provided for in the previous limitation. Seven such husbands and wives were, in fact, living when the will was made and when the testatrix died, and it was for them that the devise was made ; and if the testatrix had intended a formal provision for their possible successors after her death, we should expect to find some definite disclosure of that purpose, and not one dependent upon a mere inference from a form of expession which might very well not have been so intended. For the use of the indefinite article in the phrase “ a husband or wife ” was occasioned by the existence of several such persons answering the description, to any one of whom the provision was intended to apply. It means, therefore, any one of the seven in being at testator’s death who might be living at a child’s death, or leave issue upon his or her decease ; and should not be held to include some husband or wife becoming such after the testatrix’s death.

The case mainly relied upon by the appellant is that of Schettler v. Smith (41 N. Y., 328); but there the language of the will was different, and provided for the unlawful limitation by expressions definite and precise in their application, and which could bear no other meaning. The trust in that case secured a fife interest to the son John Jacob, and on his death to his wife, by a separate provision confined to them alone, although the son was unmarried; and it could have had no possible application to a wife living at testator’s death, and must have contemplated an after marriage and provision for such a wife. Here, on the contrary, there are seven wives and husbands living at testator’s death, to whom the limitation can apply and was intended to apply, and we are asked to go beyond that application and construe it not only to reach a later wife of the one unmarried son, but also a possible second wife or husband of the married children. In the case cited, the language creating the trust for another son, Lawrence, who was married, is still more decisive, for there, added to the bequest to the wife of Lawrence, was the provision “on her decease if he leave a widow, or if he leave no widow, then on his decease to convey,” etc. The court very properly held that the use of the word ‘ ‘ widow ” plainly included any wife who might survive him. »

It is true, as is conceded, that the trust in the present will is divisible into as many separate trusts as there are children. But in seven of them there was in each case a wife or husband living at the death of the testatrix, and within her knowledge and thoughts, and about those there' is no serious question, and scant room for doubt that such and such only were the intended beneficiaries of the second life interests. We do not think the construction could be changed when we come to the case of the unmarried son, for though the trust was divisible, it was created at once for all the children, and by a common description and expression.

But assuming the trust estates which precede the remainders to be valid, it is contended that such remainders to the grandchildren further suspend the power of alienation beyond a single minority. That contention proceeds upon the theory that the remainder does not vest until all the grandchildren in one of the trusts who take their father’s share become of full age, and is founded upon the fact that they are to take per stirpes, and that they are to receive the income until of full age, “ when their interests shall be given to them.” But already, in previous provisions, the testator had declared that the remainders to her surviving children should vest at once upon the termination of the precedent estates, and when she reaches the alternative of there being issue, her words are that said issue shall “ represent” their parent, and when of full age “ their interests shall be given to them.” This language assumes in the grandchildren an existing “interest,” the possession of which is postponed during minority, and the remainder in fee in each case vests in interest upon the termination of the precedent estates the possession only being postponed; so that if upon the death of testatrix each minor grandchild then living, took only a contingent future estate, yet upon the death of its father and mother, the contingency disappeared, and the estate vested at that date as a remainder in fee. Manice v. Manice, 43 N. Y., 374. It was distinctly held in that case that where nothing is interposed between the minor and his enjoyment of his estate except his own minority, the estate is vested. And the case becomes stronger when during such minority the accruing rents and profits are given to the minor. In such event the gift of the intermediate income indicates an intention to vest the corpus from which the income is to be derived. Robert v. Corning, 89 N. Y., 225, 241.

That the issue of each child were to take per stirpes, does not make them joint tenants, and so interpose minorities other than their own. The phrase indicates that as between them and the other grandchildren, they are to have exactly their parent’s share unaffected by their own number, but accomplishes no more than that. How, as between themselves, they take is fixed by statute, 1 R. S., p. 727, sec. 44, which makes them tenants in common in the absence of an express provision for a joint tenancy.

It follows, therefore, under this will, that upon the death of any child, and that child’s husband or wife who was living at testatrix’s death, the portion or share of such child vested at once in his or her children, each one of such children taking his or her proportion in fee, subject only to a postponement of possession during his or her minority, and to the execution of the trust upon the rents and profits during that period. Stevenson v. Lesley, 70 N. Y., 517; Embury v. Sheldon, 68 N. Y., 234. There was, therefore, no possible suspension of the power of alienation beyond two lives in being at the death of testator, and a single minority.

We think, therefore, that this will admits of a construction which preserves its dispositions and does not invalidate its limitations.

The judgment should be affirmed, with costs.

All concur.  