
    In the Matter of the Judicial Settlement of the Estate of Margaret King, Deceased. Moses W. Taylor and Edna Odell, as Executors, etc., of Dyckman Odell, Deceased, Appellants; Rufus King, Individually and as Executor, etc., of Margaret King, Deceased, and Sarah A. Shaw, Respondents.
    Second Department,
    December 10, 1909.
    Will construed — devise in trust, proceeds of sale to class.
    A will which devises certain lands in trust to be sold and the proceeds divided equally between the nephews and nieces of the late husband of the testatrix, being children of the husband’s brother, who were living at his decease, and also to the children of the husband’s sister, share and share alike, will be construed as a gift to the nephews apd nieces as a class, rather than as a gift to them nominatim, and, hence, the proceeds should be divided among such nephews and nieces as were living at the death of the testatrix.
    Appeal by Moses W. Taylor and another, as executors, etc., from part of a decree of the Surrogate’s Court of the county of' Orange, entered in said Surrogate’s Court on the 30th day of June, 1908, settling the accounts of the executor of Margaret King, deceased, and directing the distribution of the proceeds of the sale of certain property of said deceased.
    
      Lew%s G. Platt, for the appellants.
    
      William W. Scrugham, for the respondents..
   Miller, J.:

We are required on this appeal to construe the following paragraph of a will, viz.:' “ Fourthly. I give and devise to my executors, hereinafter named, tny house and lot, No. 138 Seventh avenue, west side, third door below Twentieth street, New York city, in trust, to sell the same within eighteen months after my decease, either at public or privaté sale, for the best price they can obtain, and give to the purchaser or purchasers ^ good. and sufficient deed therefor, and divide the entire proceeds of such sale equally between tlié nephews and nieces of my late husband, being the children of his brother, Bufus S. King, of New York, who were living at the death of my l^ate husband, and the children also of his sister, Margaret M. Petty, of Orient, Long Island, share and share alike to them and their heirs.” Nine such nephews and nieces were living when the husband died and when the will was made. Five of them predeceased the testatrix, and the question is' whether the gift was to them as individuals or as a class. ' .

The grammatical construction is awkward, but we have little doubt that the antecedent of “ who ” is “ nephews and nieces,” and that the paragraph should be -read as though the clause beginning with the relative who ” and the phrase intervening between it and its antecedent were transposed, but with that difficulty removed the true meaning of the paragraph is still not free from doubt.

. We are referred to no case, and our research has disclosed none in this State decisive of the question. Jarman defines a gift' to a class thus : “ It is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount Upon the ultimate number.of persons ” (1 Jarman Wills [6th Am. ed.J, *232), and the. Court of Appeals has frequently referred to that definition with approval. (Matter of Kimterly, 150 N. Y. 90; Matter of Russell, 168 id. 169; Herzog v. Title Guarantee & Trust Co., .177 id. 86.) It would seem that, where the testator fixes a point of time for ascertaining the donees, which is prior to the making of the gift, they should be considered as persones designates, the same as though the gift were to them nominatim / for, in either case, the description would tend to in dicate, that the testator had individuals, not a fluctuating class, in mind. But in discussing cases in which the testator himself has not ■ expressly fixed the point of time of ascertaining the objects of the gift, which he states takes the case out of the general rule, i. e., of gifts to a class¿ Jar-man gives, illustrations like this case (2 Jarman Wills [6th Am. ed.], *1009), and the text is supported by the citations in the note. Viner v. Francis (2 Cox Ch. 190), the leading case, involved a gift to the children of the testator’s late sister. The gift was construed- as though made to the testator’s own children and was held to be a gift to a class as distinguished from the case where a definite-number of donees were designated. The next case (Lee v. Pain, 4 Hare, 250) involved a gift to B for life, with remainder to the children of B living at his decease, plainly a gift to a - class.not affected by the fact that B died during the lifetime of the testator. In Leigh v. Leigh (17 Beav. 605) it was decided on the authority of Finer' , v. Francis that a gift to all the present born children of a person-named was a gift to a class, but only by construing that expression -as referring to the time when the gift took effect. The correctness ■ of that decision was questioned in Cruse v. Howell (4 Drew, 215), and in the head note to Spencer v. Wilson (L. R. 16 Eq. 501). In the former case tiie vice-chancellor plainly states the rule thus : “ If there is a bequest to certain persons nominatim, or so described as to be fixed at the time of the gift, so that there can be. no fluctuation, then if one of them dies in the lifetime of the testator his^ share lapses.” In Dimond v. Bostock (L. R. 10 Ch. App. 358), a . case difficult to distinguish from this, it was held-that a bequest by; a testatrix to the nephews and nieces of her late husband who were Hvi/ng at the ti/me of his decease, excepting two named, was a gift to a class. In support of that decision Lord Justice James cited-Finer.Y. Francis, Lee v. Paim, and Leigh v. Leigh, the last , being the only case really in point; and it is plain that, if the case had been one of original impression, his judgment would have been the-other way. In Matter of Smith’s Trusts (L. R. 9 Ch. Div. 117) a bequest to tiie five daughters of persons named was held to be a gift to them as persones designates.

Of the decisions in this State two need tobe noticed." Magaw. v. Field (48 N. Y. 668), like Viner v. Francis, was a case of-a gift-to the children "of a deceased, person. Manifestly the children of A constitute a class whether A be living or dead, and the mere fact that there can be no fluctuation by addition does not prove that the testator had particular individuals in mind. All in a class, i. e., all the children of A, living at the death of ■ the testator, will take. But if tó the words “ the children of A, deceased,” be added “ who were living at the death of A,” it would seem that the time expressly fixed by the testator, not the time of his death, should be the time of ascertaining the objects of his bounty, and that he must have had particular individuals in mind, else the phrase must be'rejected as meaningless.. Now, in this case, the nephews and nieces of the late husband would constitute a class, and it would be capable of increase as well as of diminution. If it were intended to benefit a class, not the particular individuals, living at a specified time, it would seem that all who were embraced within the class at the death of the testatrix, those born after the making of the will as well as those then living, would take. If the testatrix had in mind a class, i. e., the nephews and nieces of her husband, and not particular individuals of the class, so .that she might be presumed to have intended to benefit all of the class living at the time of her death, it is difficult to understand why she restricted the number by the clause “who were living at the death of my late husband.” Had the gift been to “ the nine nephews and nieces of my late husband,” there would be no doubt,-according to the cases hereinbefore cited, that the gift was to particular individuals; and it seems to me that, ‘ standing alone, the expression used by the testatrix amounts to the "same thing. However, in Hoppock v. Tucker (59 N. Y. 202) a bequest to three persons nominatim, also described as the children of a deceased daughter, was construed to be a gift to a class because the court gleaned an intention from the other parts of the will and from the general testamentary scheme to treat such children as the representatives of their mother and to. give the entire bequest' to those who should survive the testator. The question here then is whether there are otliér words in this will which shed any light on the intention of the testatrix.

It is to be noted first that there are no words of gift to -said nephews and nieces. By the 2d, 3d and 5th clauses of the will the testatrix made provision for. her own brothers and sister. The clause in question was evidently intended to provide fqr the late husband’s family and to devote the real property described to the purpose. To that end she directed its conversion into personalty. The gift is to the executors in trust, witli a direction that they- sell and divide the proceeds, which indicates an intention to devote the entire property in any event to the purposes of the bequest. Had an intervening life estate been created with a direction that, upon its termination, the trustees divide the corpus among said nephews and nieces with no words of gift to them, the remainder, according to a well-settled rule, would not vest until the time for division arrived. I think that by analogy an intention may be gleaned from' this will that the executors should divide the proce'eds of the sale among such of the specified nephews and nieces as should be living at the death of the testatrix, and, therefore, advise, not, however, without hesitation, that the decree of the surrogate be affirmed.

Hirschbeeg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Orange county, in so far as appealed from, affirmed, with costs to tlie respondents payable out of the estate.  