
    Lester J. Saul, as Executor and as Trustee under the Last Will and Testament of Solomon M. Swartz, Deceased, Appellant, v. Henrietta Swartz and Gerald Lyon, Individually and as Executor's of and Trustees under the Last Will and Testament of Solomon M. Swartz, Deceased, and Others, Respondents, Impleaded with Howard Eisenbach and Others, Appellants.
    First Department,
    April 20, 1906.
    Will construed — when daughter married at the execution of an instrument entitled to take gift made therein to daughters who shall marry — when future distribution of estate will not be determined as academic question.
    When a will making certain bequests and creating certain trusts provides that “Upon the marriage with her mother’s consent of any daughter, provided, however, that said daughter has not already received from me the said sum, I direct my Executors to pay to said daughter the sum of Fifteen thousand Dollars, being part of her said share in my estate, and I direct my executors to deduct from said Fifteen thousand Dollars any sum which I may have charged against my said daughter on account thereof,” a daughter who married in the lifetime of the testator with his and her mother’s consent, and who at her marriage received from the testator §12,500, is entitled to receive from the executor §2,500 more under said clause of the will, in order to complete the gift of §15,000.
    Although said daughter was married at the execution of the will, she is entitled to take under the provision aforesaid, which should not he construed to include only the daughters then unmarried.
    When trusts have not terminated and parties may come into being who may be entitled to share in the estate of a deceased beneficiary, the court will not determine the future, distribution of said estate as a purely academic question.
    Appeal by the plaintiff, Lester J. Saul, as executor and as trustee, etc., and by the defendants Howard Eisehbach and others, from certain portions of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 10th day of May, 1904, upon the report of a referee.
    
      Donald McLean, for the plaintiff, appellant.
    
      J. Harry Hull, guardian ad litem, for the infant appellant, Robert Lyon.
    
      
      Herbert Parsons, guardian ad litem, for the infant appellants,, Howard Eisenbach and others.
    
      Edgar J. Nathan [Cardozo & Nathan, attorneys], for the respondent Gerald Lyon.
    
      Felix H. Levy, for the respondent Lester J. Saul, as executor of Lawrence Swartz, deceased.
   Clarke, J.:

This is .an appeal from part of a judgment entered upon the report, of a referee. The case involves-the construction of the. will of Solomon M. Swartz, deceased, and the accounting by his execm tors and trustees. The estate- is still held in ' trust and there has been and .is no distribution among individual beneficiaries. The evidence is not returned in the printed case on appeal, and ‘the .appeal is here on exceptions to .two conclusions of law.

On April 17, 1889.,. Solomon J\L Swartz made his will. He died on April 6, 1890. The will provided for certain bequests, then to his grandson $2,500 to be paid dn his reaching the age of, twenty-five, to each of my children living at my death the sum. of five thousand dollars in addition to other provisions for their benefit,” to his wife the use of his house and the property contained therein for life.

Sixthly.: All the rest, residue and remainder of ray estate, real and personal wherever and whatever, of which T, may .die seized, possessed or'entitled to, I give, devise and bequeath' to my Executors hereinafter named who shall qualify and.to the sprvivor upon the following trusts: .

“1. To receive the rents, income and profits- thereof and - apply the same to the use of my wife Henrietta-, so long as she shall remain my widow, subject however to-the provisions hereinafter made for the benefit -of my -children.

“ 2. Upon' the death of my wife, I give and devise my estate to and among my children, equally share and share alike, the .parts or shares set apart to- my daughters respectively, to be held by my Executors upon the further trust to receive the rents, income and profits thereof during the life, of such daughter and apply the same to the. use of such daughter so long as she shall live; -and upon her death the trust to cease as to such share, which shall thereupon go and belong to the heirs at law of such daughter absolutely, per stirpes. * * *

“ 3. Upon the marriage with her mother’s consent of any daughter, provided, however, that said daughter has not already received from me the said sum, I direct my Executors to pay to said daughter the sum of Fifteen thousand Dollars, being part of her said share in "my estate, and 1 direct my executors- to deduct from said Fifteen thousand Dollars any sum which I may have charged against my said daughter on account thereof.

“ 4. Upon my son attaining, the age of Twenty-five years, I authorize my executors in their discretion to advance to him out of his share the sum of Twenty thousand dollars.

“ 5. Should any daughter attain the age of Twenty-one years in her mother’s lifetime, I direct my Executors to pay to such daughter from and after lier.attaining the age of twenty-one years, and until her marriage or the final division of my estate as prescribed in this article, the annual income yielded by the sum of Fifteen thousand Dollars.” /

■ The learned referee found as matter of fact'“ that said defendants Henrietta Swartz and Gerald Lyon on orabont the. 6th day of January, 1891, paid to the defendant -Annie Lyon , the sum of $2500, termed and additional gift by decedent; ’ that prior to the death of said Solomon M. Swartz and the making of his will, Annie Lyon had married with the .consent of her father and mother, and at the time of her marriage the decedent had given her the sum of $12,500,” and as a conclusion of law “ that the sum of $2500 paid to Annie Lybn as additional gift from the decedent was properly" paid by the executors, in fulfillment of the provisions of the will in regard to" the $15,000 legacies to the daughters,” To -this, finding exception was duly taken.

The" scheme of this will is clear and the intention thereof not difficult to discover. Testator exhibited to the natural objects of his bounty justice and equality, slightly varied by just consideration. His children stood equally in his affections. He first gave to each a bequest of $5,000, expressly said to be “in addition to other provisions for their benefit.” He then created a trust for the life of , his wife,- “ subject, however, to the provisions 'hereinafter made for the benefit of my children.” Upon her death the trust estate was to be' divided equally among the children; the daughters’ shares, for, their protection, however, to be in trust for tlieir lives, with remainder Over to their children. The daughters, marrying with their mother’s consent, were -to receive a marriage portion of $15,000, “■being part of her said share.in my estate,” but from it was to be deducted any-sum which testator “ may have charged against my said daughter on account thereof.\

. Appellants contend that the will is„to be construed, if not from the date of the death of the testator, at least from the date of its execution, and that as at that time Annie was already married, the provision as to. the daughters marrying with their mother’s cbnsent referred solely to the then unmanned daughters, had the element-of futurity attached to it, and could in no event have been intended to include Annie.

Wills are to be construed according to the intention of the testator when. it is possible to discover such intention from the language used by him. The keynote of this will is fairness and equality to his children. He treated them alike. They were equally dear to him. He had no favorites. Annie had married not only with her mother’s conspnt, but with his own- Her husband.he had made one of his executors and trustees. Her- son, the infant Robert, he liad made a legatee by name.' He had given her $12,500,- and his will provided that- his executors should deduct from the $15,000,. “ any snm which I may have charged against my said daughter on. account thereof,” Equality among the 'sisters requires the allowance -of this $2,500 to Annie, as we assume, in the absence of the-evidence and the accounts, that the other daughters have each received $15,0.00.

Uor is our view of the proper construction of this will unsupported by authority — if authority be needed for the proposition that a will should be construed in accordance with the clear intention of the testator.. .

In Eisner v. Koehler (1 Dem. 277), Surrogate Rollins had occasion to examine what he called “ enabling conditions ” in. a. will.' He said : “ The decided cases to which I have referred clearly establish that in the interpretation of such a condition'as the one under review, it is proper to inquire what purpose the testator had in imposing it, and that, in the absence, of any language indicating a contrary intention, such condition should be deemed fulfilled whether it has been satisfied after the testator’s death, or before that • event and subsequently to the execution of the will, or even ~before such execution. * * * Where, for example, a testator has made a bequest to one of his daughters upon her marrying with the ■approval of his widow or his executor, or some other specified person or persons, it has often been held that the marriage of the daughter in the lifetime of her father and with his approbation, must be deemed a substantial compliance with the conditions created by the will. (Clarke v. Berkeley, 2 Vern. 720; Parnell v. Lyon, 1 Ves. & Bea. 479 ; Wheeler v. Warner, 1 Sim. & Stu. 304; Smith v. Cowdery, 2 Sim. & Stu. 358.) And this in recognition of a principle thus stated by Roper (Legacies, p. 819): The proper marriage of the legatee being the essence of the condition, the purpose is answered by the marriage under the eye and with the consent of the testator. The condition, it is true, is not performed according to the letter) but it is so in substance.’ ”

In Van Vechten v. Van Vechten (8 Paige, 104) the testator made certain specific bequests and conveyed' the rest of his property to -his son and daughters under specified trusts; he also bequeathed an outfit to each of his three daughters who should marry. Two of the daughters married during the lifetime of their father, and it was held that they were entitled to receive such outfit as a legacy.

This payment was, therefore, justified, and the portion of the judgment appealed from in that regard should be affirmed.

Lawrence Swartz, the son of the testator, has died, and a construction of the will was asked in respect to the determination of the proper disposition óf his interests under his father’s will, and the learned referee has made certain conclusions in relation thereto which have been excepted to, and especially by the infant appellants.

The trust estate has not yet determined; the time for distribution ha's not arrived. There is no present necessity for any decision upon this question, and by the time that the question has to be determined there may be in existence other parties who will be interested therein and entitled tb be heard thereon, and who would not be controlled by any unnecessary determination made by the court at the present time. Under such circumstances decision of an academic question will not be undertaken by this court.

The judgment should be modified by striking therefrom the three paragraphs construing the will as to the disposition of the right, title and interest of Lawrence Swartz, and as so modified affirmed, with costs to all parties payable out of the estate.

O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to all parties avable out of the estate. Settle order on notice. ,  