
    SAMUEL D. HOPKINS and others, Plaintiffs, v. MARY L. HOPKINS and DRUZILLA HOPKINS, Defendants.
    Will— Construction of—Remainder — when rested.
    
    Susan Hopkins died, leaving a will, by which she devised the use and income of all her estate, both real and personal, to two of her daughters, so long as they should live and remain unmarried, and upon their death or marriage, she devised all the rest, residue and remainder of her estate to her children, naming them, or to the survivor or survivors of them ; and, “in case any of my children die, having issue, then I will and direct that the child or children of such son or daughter of mine, shall receive the same as the parent of such grandchild would have received if living.” Held, that the children named in the will, took vested estates in remainder, immediately upon the death of the testatrix.
    Case submitted on a statement of facts, agreed upon by the parties, under section 372 of the Code.
    Susan Hopkins died, prior to May, 1873, leaving a last will and testament, which was admitted to probate, May 8, 1873, and letters ■ testamentary issued thereon to Samuel D. Hopkins and Travis Hopkins, the executors therein named. The will contained, among others, the following provisions: “ I give, devise and bequeath to my two daughters Druzilla Hopkins and Mary L. Hopkins, during their natural lives, if they remain unmarried, the use and income of all my real and personal estate of every name and nature. In case either of my daughters should marry, then I will and direct the daughter unmarried, shall have the use and annual income of all my real and personal estate of every name and nature, during her natural life, or so long as she shall remain unmarried, my design being to provide a comfortable home for my unmarried daughters, so long as they live. In the event of the death or marriage of my said daughters, Druzilla and Mary L., I give, devise and bequeath the rest, residue and remainder of my estate, to my children, Travis Hopkins, ¡R. Anne Pease, H. Jane Bishop, Anor H. Potter, John Q. Hopkins, Druzilla Hopkins, Mary L. Hopkins and Samuel D. Hopkins, or to the survivor or survivors of them. In case any of my children die, having issue, then I will and direct that the child or children of such son or daughter of mine, shall receive the same as the parent of such grandchild would have received if living—that is, the portion that would have belonged to the parent, if living.”
    The plaintiffs, Travis Hopkins, Samuel D. Hopkins, Anne Pease, Hannah J. Bishop and Anor Potter, made a contract with the defendants, to sell and convey all their interest in the lands of the testatrix, devised by the will, on the 29th of November, 1873. The deed was to be delivered on the 19th of December, 1873, at which time, the deed, having been properly executed, was tendered to the defendants. They declined to accept the same, for the reason that, as they claimed, the grantors could not and did not convey by said deed, the lands according to the contract, viz., a perfect title in fee simple absolute, including the interest that the defendants acquired under the will of said Susan Hopkins.
    
      J. JDe Motte Smith, for the plaintiffs.
    
      F. M. Finch, for the respondents.
   Miller, P. J.:

The question to be determined under the testatrix’s will, is, whether the devise to her children, after the termination of the devise to her two daughters, was a vested or a contingent remainder. By the will, she devises to the two daughters, Druzilla and Mary, an estate during their lives, provided they remain unmarried, and upon the termination of this estate, the remainder to the children named in the will, or the survivor or survivors of them. Did the will stop here, there would be no difficulty in construing it, as such children, or the survivor or survivors, would most clearly be entitled to a vested estate. "But the clause following, which provides that if any of the children die, having issue, that such issue shall receive the same as the parent would have received -if living, raises a question which is not entirely free from embarrassment. There are certain legal rules, however, applicable to cases of this character, which must lead to a rational interpretation of the instrument now to be construed. It is provided by statute, that estates are vested, when there is a person in being who would have an immediate right to the possession of lands, upon the ceasing of the intermediate or precedent estate, and contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain. Chancellor Kent says: “An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment.’.’ I think that the will of the testatrix gave an estate to the children last named in the same, which entitled them to the possession of the land, upon the determination of the estate of the two daughters who were first entitled .to an estate therein, and that it was an existing right to enjoy the same upon the marriage or death of said daughters.

Where real estate was devised to one for life, and after his death, to three others, or to the survivor or survivors of them, their or his heirs or assigns forever, it was held that the remainder-men take a vested interest at the death of the testator, and that the words of •survivorship refer to the death of the testator, and not to the death of the tenant for life, unless, from other parts of the will, it be manifest that the intent of the testator was otherwise. The case at bar bears a striking analogy to the one cited, and the language is of the same import, with the exception that the words, “heirs or assigns forever/’ are not employed. This, I think, does not alter the meaning, and it is equally plain and explicit without the use of these words. The devise, beyond any question, gave to the children of the deceased, who were named, and living at the time of the testatrix’s death, a remainder in the' estate, which then became vested in them. The subsequent provision for the issue of such as might die, was, in my opinion, intended to provide for the disposition of the share or shares of such child or children, as might not be living at the time of the testatrix’s decease. It was in fact equivalent to a provision for the heirs or assigns Of the deceased child or children. Without this clause, I am inclined to think that the .portion of such one or more, as might die without issue, would go to the survivor or survivors, and thus prevent the issue of the deceased devisee from participating, in any way, in the final division of the estate. This could never have been intended, .and the testatrix sought to, and did, I think, avoid any such result by the provision now considered; thus making an equal distribution among her children and grandchildren and harmonizing the entire plan and structure of the will. The whole will related to, and had in view, such of her lawful descendants, who were named, as might be living upon the decease of the testatrix. If we regard the last clause as an independent provision, I think we must arrive at the same conclusion; for it is after all a devise to the heirs-at-law of the deceased. The grandchildren, in case of the decease of the children, would inherit according to law, and a devise to the children, and in case of death, to the grandchildren, amounts to, and really is, a devise to the person and his or her lawful, heirs.

The intention is a leading element to be considered in the construction of wills, and it is hardly to be assumed that the testatrix designed to make no provision for the grandchildren, in case of the death of any child or children before her decease, and only sought to secure the final distribution to such of them as should survive their parents, who died after her decease.

Another rule may be invoked in support of the construction stated, and that is: that the law favors the vesting of estates, and, unless the intention is unequivocally expressed to the contrary, it will not be imputed to the testatrix. It cannot be said, in the case at bar, that any intention whatever is expressed by the testatrix, that the estate devised shall not be vested, and every intendment is, as we have seen, in a contrary direction. As was said by the chancellor in Moore v. Lyons, A remainder is not to be considered as contingent in any case, where it may be construed to be vested consistently with the intention of the testator.” It is apparent that it is entirely in accordance with the object, purpose and design of the testatrix in this case, that the remainder devised, was not considered as dependent, in any way, upon contingencies, but vested, upon the testatrix’s decease.

The result of the discussion had, leads to the conclusion that the plaintiffs had a vested remainder in fee, to the real estate mentioned in the deed, to the extent of their several shares; that they had lawful authority to" execute and deliver a deed of conveyance of the same; and that the defendants, the purchasers, would thereby acquire an absolute estate in fee, to the interest conveyed.

This, I think, with the estate which the defendants had acquired by virtue of the will, would vest them with an estate in fee simple, of the whole premises.

The defendants, therefore, should be required to perform the contract, and a judgment must be ordered accordingly, with costs.

Present—Miller, P. J., Bockes and Boaedman, JJ.

Judgment for plaintiffs, with costs. 
      
       1 R. S., 723, § 13.
     
      
       4 Kent Com., 202.
     
      
       Moore v. Lyons, 25 Wend., 119.
     
      
       McKinstry v. Sanders, 2 N. Y. [S. C.] R., 181, 186; citing Manice v. Manice, 43 N. Y., 368.
     
      
      
        Supra, at page 144.
     