
    In the Matter of the Judicial Settlement of the Accounts of Robert C. Embree, as Executor, etc., of Jacob W. Morris, Deceased. Robert C. Embree, as Executor, etc., of Jacob W. Morris, Deceased, and Others, Respondents; Lewis Morris, Appellant.
    
      Remainder ■—• it will vest at once, even where there is no gift except a direction to dis- - tribute at the end of a life estate, if the postponement is ■merely to let in the intermediate life estate —1 R. 8. *738, §.18; *773, § 3.
    Where futurity is annexed to the substance of a gift made by a will, the vesting of title is suspended; but, if a gift is absolute, and the time for payment only is postponed, the gift is not suspended, but title vests at once.
    Out of this distinction has grown the rule that, where the only gift is in a direction to pay or distribute at a future period, time is of the essence of .the gift. .
    This latter rule,, however, must be subordinated to the intention of the testator as derived from the entire will, and, even though there be no other gift in the will than that contained in a direction to pay or distribute in the future, yet, if such payment or distribution appears to be postponed for the convenience of the estate only (as to let in some intermediate estate), the ulterior legatees will take a vested interest at the death of the testator.
    The will of Jacob W. Morris, who left no issue, and whose wife survived him, bequeathed all his real and personal estate to his executors in trust, fii'st,'to pay the net income to his wife during life; second, at her death to transfer to any children of the testator and his wife, who might be then living, all said . property at their majority, and, third, that, 'if he left no issue, to transfer all the property to the children of his brother.
    
      Meld, that the estate vested in the children of the brother at the death of the testator and not upon the death of his widow;
    That the payment ot distribution of the estate was postponed merely to let in ■the life estate of the widow of the testator, and that from and after the death of the testator there was no contingency in the case.
    Appeal by Lewis Morris, a son of Charles M. Morris, named in the will of Helen Morris, a daughter of Richard R. Morris, named in the third clause of the will of Jacob W. Morris, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 4th day of August, 1896, construing the last will and testament of Jacob W. Morris, deceased, as orders, adjudges and decrees that the only person entitled to participate in-the distribution of the principal of ■ the estate -of Jacob W. Morris, deceased, and the proportionate part of the income received by the executor and trustee under, said will since August 1, 1895, is Sophia P. M. Burrill, the only child of the said Richard R. Morris, who survived the widow of the said testator.
    Also from so much of said decree as orders, adjudges and decrees that the executor of and trustee under the said will of Jacob W. Morris pay over to Drayton Burrill and Stephen G. Williams, as trustees under the marriage settlement between Sophia P. M. Burrill and Charles D. Burrill, all the balance of the moneys remaining in his hands, including all income received by him since the making and filing of his account, less five per cent on all income received since November 1, 1895, to be retained by the said trustee, in pursuance of the terms of said will, and to assign, transfer and set over unto the said Drayton Burrill and Stephen G. Williams, as such trustees, all other securities belonging to the estate of Jacob W. Morris, deceased, more particularly stated and set forth in Schedule “ E ” of said account.
    
      Carl A. De Gersdorff and H. Snowden Marshall, for the appellant.
    
      Lawrence E. Embree and Charles A.. Moran, for the respondents.
   Williams, J.:

The facts were found by the surrogate in the decision and were not excepted to. They are as follows: The testator died January 1, 1863, leaving a will which was executed November 10,1859. By this will he gave, devised and bequeathed to his executors all his real and personal estate in trust. 1. To receive and pay over to his wife all the net income therefrom during her life 2. At the death of his wife, to assign, transfer and set over in fee all said property to any child or children of his and his wife’s who. might then be living, dividing the same equally between them. Such transfer and division of property not to be made, however, until such child or children should arrive respectively at lawful age; the income, in the meantime, after the death of the wife, to be applied by the executors to the education, maintenance and support of such child or children. 3. Provided,, however, he should not have any child or children by 'his wife, him surviving or living at the death of his wife,, then he directed his executors to assign, transfer and set over all the property to the children of his brother, Richard R. Morris, their heirs, executors and administrators forever, dividing the same equally between them, the children, however, of a deceased •child taking only a parent’s share amongst them."

The testator at his death left an estate consisting entirely of personal property. He left no issue. His wife survived him, and died November 1, 1895. His brother, Richard R. Morris, had four children living at the death of the testator, Helen Morris, Anna Morris, Mary W. Morris and Sophia P. Morris, afterwards the wife ■of Charles D. Burrill. Helen, Anna and Mary W. died without issue, before "the death of the testator’s widow. Sophia P. survived .such widow and is still living. Helen Morris died Juné 30, 1874, leaving a will executed January 13, 1874, and admitted to probate after her death, whereby, among other things, she gave and bequeathed to the sons of her cousin Charles M. Morris, all her right, title and interest in the property bequeathed to her sisters and herself by Jacob W. Morris, deceased.

Lewis Morris, the appellant, is the only surviving son of Charles M. Morris, the cousin of Helen, who made this will.

The surrogate decided that the estate of the testator, Jacob W. Morris, did not, under the will in question, vest in the children of his brother Richard R. Morris, until the death of his widow, and that, therefore, the only person entitled to participate in the distribution of the estate was Mrs. Burrill; that the appellant had no interest therein.

Thereupon, the decree was made and entered in accordance with the decision of the surrogate, and from such decree tins appeal is taken.

The question to be determined is narrowed down to the single •one whether, under the will, the estate vested in the children of Richard R. Morris at the time of the death of the testator or the death ■of his widow..

It is a "Well-settled rule for the construction of wills, that, if futurity is annexed to the substance of the gift,^the vesting of title is suspended; but if the. gift is absolute and the time for payment only is postponed, the gift is nobsuspended, but title vests at once. (Smith v. Edwards, 88 N. Y. 103; Miller v. Gilbert, 144 id. 73 ; Matter of Baer [Nathan v. Hendricks], 87 Hun, 483; aifd., 147 N. Y. 348.) And out of this distinction has' grown the rule that where the only gift is in the direction to pay or distribute at a future time, the ease will not be ranked with those in which the payment or distribution only is deferred, but is one in which time is of the essence of the gift. (Smith v. Edwards, supra ; Matter of Baer, supra ; Delafield v. Shipman, 103 N. Y. 463; Warner v. Durant, 76 id. 136; Shipman v. Rollins, 98 id. 311; Bowditch v. Ayrault, 138 id. 229.)

This latter rule is not, however, inflexible or arbitrary, and is to be applied in subordination to the testamentary intention and not as destructive of such intention. If the language of the will is doubtful, resort must be had to the primary canon of construction, that the intent of the testator, collected from the entire will, must prevail ; and general rules adopted by the court,, in and of the interpretation of wills, must give way where their application in any particular case would defeat such intention. (Cases cited supra; Campbell v. Stokes, 142 N. Y. 29; Matter of Young, 145 id. 538; Fargo v. Squiers, 6 App. Div. 485.) And there is another rule, which was laid down in Packham v. Gregory (4 Hare, 396), and which has been approved of by the Court of Appeals of this State. (Loder v. Hatfield, 71 N. Y. 92, 100; Bushnell v. Carpenter, 92 id. 270; Matter of Young, 145 id. 535, 539, 540.) That even though there be no other gift in the will than that contained in a direction to pay or distribute in the future, yet if such payment or distribution appear to be postponed for the convenience of the estate only (as to let in some intermediate estate), the ulterior legatees will take a vested interest at the death of the testator.

This rule does not apply to a will where the postponement of the payment or distribution is upon any contingency, but only to a will where the sole object of the postponement is to let in an intermediate estateA- This same distinction is embodied in the Revised Statutes, which provide “ 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 contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain.” (1 R, S. 723, § 13.) This provision as to real estate applies also to personal property. (1 R. S. 773, § 2.)

This, .rule and this statute are harmonious, and are particularly applicable to this will, and so applying them there can be no doubt that this estate was vested at the death of the testator. Whatever-contingency existed at the time the will was executed entirely disappeared at the. time of the testator’s death. ■ It was certain when he .died that he left no children by his wife. The. will took effect at the testator’s death, and then the four children of testator’s brother Richard were living-, and the only thing standing between them and the right to possession of the estate was the- intermediate life estate of the widow of the testator. ¡Neither the persons to whom, nor the event upon which their, estate was limited, was uncertain. The widow was. certain to die, and the persons who were then entitled to the estate were certainly the four children of testator’s brother Richard. .There was ,no. contingency in the case. The estate was, therefore, both under the rule referred to, and under the statute at the time the testator died, a vested and not a contingent estate.

We do not deem it necessary to refer to other considerations suggested by the appellant for his contention. The decree is erroneous . in the provisions appealed from, and as to. those provisions should be reversed, with costs; and, inasmuch as the facts are not in dispute, the proper decree should be directed to be entered by this ■court in accordance with the views expressed in this opinion. ••

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

Decree reversed and decree to be entered as directed in opinion.  