
    Miln P. Palmer, Resp’t, v. Mart A. Dunham et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 24, 1889.)
    
    1. Will—Construction of—Revised Statutes, yol. 1, § 35, p. 725.
    A testatrix devised to her executors her estate in trust. “ First, to invest the sum of $2,000, and pay over the net interest and income thereof to my niece, Mary A. Dunham, for and during her natural life, and upon her death to pay over said principal sum to her lawful issue, share and share alike.” Held, that upon the death of the testatrix, the children of Mary A. Dunham, then living, took a vested remainder in the sum to be invested for their mother, which, under the statute, they had the power to convey or to will.
    2. Same—Vested remainder—To whom: descendible.
    The testatrix made her will in 1876, and died in 1877. Mary A. Dun-ham, had three sons, David H , now living; John F , who died in 1886, and Edgar A., who died in 1871. By the fourth clause of the will, the testatrix provides that “in case of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made before the time limited for the payment thereof, my will is that the same be paid over to their next of kin, as, according to the statute of distributions, their personal estates would be divided and distributed.” Held, that the two children surviving at the time of the death of the testatrix having taken vested remainders in the provision that was made for the mother, during her life, upon the death of either of them before their mother, his share is descendible to his next of kin, and that the clause has no application whatever to the-case of a child dying before the making of the will.
    Appeal from that portion of the judgment herein which adjudicates that Annie P. Dunham is not entitled to share in the fund created by the will of Frances B. Hegeman, deceased.
    
      Sidney B. Stuart, for Annie P. Dunham; Joseph S. Wood, for David H. Dunham, resp’t; Abel E. Blackmar, for the guardian ad litem of the infant defendants, resp’ts.
   Van Brunt, P. J.

Frances B. Hegeman made her will in 1876, and died in 1877. Among the nieces which she left surviving was Mary A. Dunham, mentioned in the will, who died on the 30th of July, 1887. Mary A. Dunham had three sons, David H. Dunham, who is now living; John F. Dunham, who died in 1886, and Edgar A. Dun-ham, who died in 1871, before the making of the will in question. Edgar A. Dunham left him surviving a daughter, the appellant, Annie P. Dunham; and John P. Dun-ham left him surviving three children, Maud A. Dunham, Alden P. Dunham and Edgar A. Dunham, Jr.

By the second clause of the testatrix’ will, she provided as follows:

Second. I give, devise and bequeath to my executors hereinafter named, and the survivor of them, so much of my estate, in trust nevertheless, as will enable them to make the following investments, and to pay the legacies hereinafter named, that is to say:

First. To invest the sum of twenty thousand dollars, and pay over the net interest and income thereof to my niece, Mary A. Dunham, for and during her natural life, and upon her death to pay over said principal sum to her lawful issue, share and share alike.

And then follow twenty-four other provisions for investments or payment of legacies; and after a residuary clause, by the fourth clause of the will the testatrix provides that “ in case of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made, before the time limited for the payment thereof, my will is that the same be, paid over to their next of kin, as-according to the statute of distributions their personal estates would be divided and distributed.”

The questions presented are, first, who were meant by the lawful issue of Mary A. Dunham in the second clause of the will? And second', what was meant by the fourth clause of the will above cited?

Did it mean that in case of the death, prior to the making of the will, of any person who -would have been comprehended within the term ‘‘ lawful issue ” as used in said will, had they survived the testatrix, the next of kin of such deceased person should take the share which such person, would have become entitled to had he been living at the death of the testatrix?

It is conceded that by the decision in the case of Palmer v. Horn (84 N. Y., 516), an interpretation has been put upon the words “ lawful issue” as used in the will in question; and that it was held in that case that the word “issue”' was intended to mean children. It is not necessary to discuss this question, because it seems to have been determined by the decision in question. The second clause of' the wall, therefore, is to be read as though it had provided for the investment of the $20,000, the payment of the net interest and income thereof to Mary A. Dunham during her natural life, and upon her death to pay over the principal to her lawful children, share and share alike.

It seems to be clear from this language that the children of Mary A. Dunham took a vested remainder in this. $20,000.

A brief reference to the statute defining estates seems to-place this beyond doubt.

Section 7, p. 722, of the Revised Statutes (vol. 1), provides, as follows:

Estates as respects the time of their enjoyment are-divided into estates in possession and estates in expectancy.

Section 8. An estate in possession is where the owner has an immediate right to the possession of the land. An estate in expectancy is where the right to the possession is postponed to a future period.

The children of Mary A. Dunham, therefore, had an estate in expectancy, the right of possession being postponed until her death.

Section 9. Estates in expectancy are divided into (1.) Estates commencing at a future date, denominated future estates, and (2.) Reversions..

Section 10. A future estate is an estate limited to commence in possession at a future date either without the intervention of a precedent estate, or on the determination by lapse of time or otherwise of a precedent estate created at the same time.

The estate of the children of Mary A. Dunham, therefore, was a future estate limited to commence upon the termination of a precedent estate, namely, that in which Mary A. Dunham was interested, created at the same time.

Section 11. Where a future estate is dependent upon a precedent estate, it may be termed a remainder, and may be created and transferred by that name.

Section 13. Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingént whilst the person to whom or the event upon which they are limited to take effect remains uncertain.

The estate, therefore, of the remaindermen, under the clause in • question, was vested because there were persons in being who would have an immediate right to the. possession of the estate upon the death of Many A. Dunham, namely, her children or lawful issue, who were surviving at the time of the death of the testatrix.

By section 2 (p. 772) of the Revised Statutes, it is provided that the limitation of future or contigent interests in personal property, shall be subject to the rules prescribed in relation to future estates in lands.

Therefore, under the definition of vested remainders, as contained in the statutes, upon the death of the testatrix, the children of Mary A. Dunham, then living,- took a vested remainder in this sum, to be invested for the benefit of their mother during her life, which, under the statute, they had the power to convey or to will.

Section 35, Vol. 1, of the Revised Statutes, p. 725, provides: “Expectant estates are descendible, devisable and alienable in the same manner as estates in possession.”

¡Now, under this condition of affairs, what did the testatrix mean by the provision contained in the fourth clause of the will, namely, “that in case of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made before the time limited for the payment thereof, my will is that the same be paid over to their next of kin, as, according to the statute of distributions, their personal estates would be divided and distributed.”

The children of Mary A. Dunham, as has been seen, becoming vested with a remainder upon the death of the testatrix, were beneficiaries under the will, they were persons entitled to share in the investment therein directed to be made before the time limited for the payment thereof to them, and they were the persons who are meant by the fourth clause. And, apparently, in order to prevent the alienation of the vested remainders, or the devising of such remainders away from the persons who would take under the statute of distributions, it was provided by the will that in case of their death before they were entitled to possession, their share should be paid over to their next of kin, according to the statute of distributions.

It is evident that this is what the testatrix meant—to prevent the alienation of these expéctant estates, and nothing less and nothing more. And although it is claimed that inapt and inartificial language has been used, yet it seems to us that she has defined, with peculiar accuracy, the situation of these remaindermen, viz.: that they were beneficiaries under the will, as they were; that they were the persons entitled to share in the investment therein directed to be made; and that they had acquired an interest therein before the time limited for the payment thereof, namely, the termination of the precedent estate.

It, therefore, follows that the two children surviving at the time of the death of the testatrix having taken vested remainders in the provision, that was made for her mother during her life, upon the death of either of them before their mother, his share is descendible to his next of kin pursuant to the provisions of the fourth clause, and that the fourth clause has no application whatever to the case of a child dying before the making of the will in question.

That part of the judgment appealed from should be af- . with costs to be paid out of the estate,

Macomber and Bartlett, JJ., concur.  