
    Matter of the Estate of Josephine C. Peters, Deceased.
    (Surrogate’s Court, New York County,
    August, 1916.)
    Trusts — devise to executors in trust — when estates in remainder are vested — intestacy — wills.
    Where testatrix who died in 1897 gave one-third of her estate to her executors in trust for the benefit of her daughter, who died in 1915, with direction “to pay the net income therefrom as often as half-yearly to her during her life, and in trust upon and after her death to pay over and divide the principal or capital thereof to and among the children of my said daughter, in equal shares, upon their severally becoming twenty-one years of age, and during their minority to apply the income of each child’s share to his or her use towards their support and maintenance,” the estates in remainder are vested and not contingent and the share of a child of the life tenant, who predeceased her, goes to her legatees if she left a will, or to her next of kin if she died intestate.
    Proceeding upon the accounting of trustees.
    Duer, Strong & Whitehead, for petitioners.
    Gregory, Stewart & Wrenn (Allen S. Wrenn, of counsel), for Helen Bourn Taggart, et al.
    Maurice Simmons, special guardian of infants Gaston Francis Wilde, Reginald Geoffrey Wilde, and Pamela Josephine Wilde.
   Fowler, S.

The trustees have filed thqir account and ask for a construction of paragraph sixth of the will of the testatrix. In that paragraph the testatrix gave her executors one-third of her estate in trust for the benefit of her daughter, Anna Maria Taggart, “ to pay the net income therefrom as often as half-yearly to her during her life, and in trust upon and after her death to pay over and divide the principal or capital thereof to and among the children of my said daughter, in equal shares, upon their severally becoming twenty-one years of age, and during their minority to apply the income of each child’s share to his or her use towards their support and maintenance.”

The testatrix died on the 4th of January, 1897, and her daughter, Anna Maria Taggart, died on the 5th day of September, 1915. At the date of death of the testatrix Anna Maria Taggart had four children living, and three of them survived the life tenant. The other predeceased her. mother, but ivas survived by three children, who are infants,, and who appear in this proceeding by special guardian duly appointed by this court. The children of Anna Maria Taggart who survived her contend that they are entitled to the principal of the trust fund set apart for their mother by the will of the testatrix, while the special guardian for the infants contends that they take their mother’s share, or a one-fourth part of the principal.

The determination of this question depends upon whether the remainders after the life estate of Anna Maria Taggart were vested or contingent. The question is not perhaps free from doubt, but as the facts in this matter are practically the same as those in the case of Fulton Trust Co. v. Phillips, 164 App. Div. 498, I feel that the decision in that case is controlling upon me. I will therefore hold that the remainders were vested, and that the share of Josephine Wilde goes to her legatees, if she made a will, or to her next of kin if she died intestate.

Decreed accordingly.  