
    Samuel Riker, Jr., as Trustee in Bankruptcy of Edward E. Gwynne, Respondent, v. Helen S. Gwynne, as Administratrix, etc., of Edward E. Gwynne, Deceased, and Others, Appellants.
    First Department,
    July 7, 1910.
    Will — construction — issue — time of determining remaindermen — bankruptcy— suit by trustee to set aside conveyance.
    Where a testatrix left all her real property to her husband for life or until his remarriage, and upon his death or remarriage she devised it to her two brothers in fee simple, share and share alike, with the qualification that “Should either of my said brothers die * * * before the death or the remarriage of my said husband,” and “if the deceased shall leave lawful issue, then I give * * * to such issue their parent’s share,” and by another clause she directed the executors, “after the death of my said husband or his remarriage to deliver * * * said real estate * * * to such * * * persons as shall be entitled to same pursuant to the terms and conditions of this will,” the word “issue” is not restricted to the children of testatrix’s brothers, but includes their descendants to whatever degree, and the time fixed for determining those who are to take is the date of the death or remarriage of the husband.
    Where one of the brothers and his son died before the testatrix’s husband, the son’s interest in the estate was divested by . his death, and the share which would have been his had he survived the life tenant became vested in the issue of his father, which included his own children.
    A conveyance by the son of his interest cannot be set aside by his trustee in bankruptcy where it appears that the bankrupt died before the life tenant, for the conveyance is a nullity, as the bankrupt had no interest to convey.
    Laughlin and Miller, JJ., dissented, with opinion.
    Appeal, by th.e defendants, Helen S, Gwynne, as administratrix, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28tli day of October, 1909., upon the decision of the court, rendered after a trial at the New York Special Term, setting aside a conveyance of real property as fraudulent and void as to creditors.
    
      C. R. Waterbury [Dallas Flannagan of counsel], for the appellants.
    
      Henry Necarsulmer [Max J. Kohler with him on the brief], for the respondent.
   Ingraham, P. J.:

The property in question was owned by Edith O. Gill, who died leaving a last will and testament which was admitted to probate in May, 1899. By that will, she left all her real property to her husband for life or until his remarriage. He is still living and unmarried and in possession of the property in question. Hpon the death or remarriage of her husband she devised.her real property to her brothers David and Abraham “in fee share and' share alike,” with this qualification: “ Should either of my said brothers die before me, or before the death or the remarriage of my said husband not leaving lawful issue him surviving, then the survivor of them shall have and take the share of the said real and personal estate which the deceased if living would have taken. But if the deceased shall leave lawful issue then I-give and devise and bequeath to such issue their parent’s share in said real and personal estate ; ” and by the 5th clause of the will the testatrix directed her executor to take the chargé, management and control of her estate during the life or until the remarriage of her husband, to pay the rents and income therefor to her husband, “ and from and after the death of my said husband or his remarriage to deliver over all and singular said real estate to my said brothers David Eli Gwynne and Abraham Evan Gwynne or to such other person or persons as shall be entitled to same pursuant to the térms and conditions of this will.”

In construing this will the question that confronts us is, to whom did she intend that her real property should go on the death or remarriage of her husband? If her brothers survived her husband there would be no question but that she intended that they should take a estate in fee simple; but she realized that her husband might survive one or both of her brothers, and made provision for that contingency. If the one dying left no issue him surviving (issue here clearly meaning descendants) then the survivor was to take; but if the deceased brother should leave lawful issue him surviving then the testatrix gave and bequeathed the deceased brother’s share to “ such issue.” The use of the word “ issue ” is significant. If it had been intended to confine the devise of the remainder to the children of the deceased brother, that word would have been used instead of one which is capable of a more extended meaning, and which as ordinarily used includes descendants to whatever degree. The intent throughout the will was that the persons who were to take were to be determined at the death of the testatrix’s husband. Thus, as is said, futurity was of the substance of the gift. It was only in the event that the brothers survived the husband that they could take. “ Should either of my said- brothers die * * * before the death or the remarriage of my said husband” ¿Aerethe survivor should take if he left no issue; but if the deceased left . lawful issue “ then I give and'devise and bequeath to such issue their parent’s share in said real and personal estate; ” and then to make clear the meaning of the 5th clause of the will, she expressly directed the executors from and after. the death of her husband to deliver over all and singular said real estate ” to her brothers or to such .other person or persons as should be entitled to the same pursuant to the terms and conditions of the will.

It would not be disputed, I think, that the surviving brother would not be entitled to the real property to the exclusion of the grandchildren of a deceased brother, and yet, if the word issue ” is limited to children, and the deceased brother left no child, but left grandchildren, I do not see why the surviving brother would not be entitled to the property.' If the words such issue’’ include the grandchildren of the deceased brother, I cannot see why such grandchildren constituting the issue ” of the deceased brother at the death or remarriage of the husband would not be entitled to have the executors deliver over to them the real property to which they were entitled by the terms of the will.

In every provision of this will the gift and the direction to deliver-over speak as of the time of the death or remarriage of the testatrix’s husband, and I think- it was clearly the intention to preserve this property to her brothers or their descendants at the time of her husband’s death or remarriage. David Eli Glwynne died in January, 19.00, leaving the bankrupt a child surviving. On February 8,1901, the bankrupt conveyed his interest in this real property to his mother. This conveyance would only be effectual to convey any interest in this property if he outlived the life tenant. It is this conveyance that the court has held was void as to creditors, and there was vested in the plaintiff, as trustee in. bankruptcy, the bankrupt’s interest in said property; but, as I construe the will, that interest was divested by the death of the bankrupt before the death of the life tenant. The bankrupt died in May, 1904, the life' tenant surviving, and thereby the bankrupt becariie divested of any interest in' the property, which vested in the “ issue ” of David E. Gwynne, which included the bankrupt’s children,, and neither the bankrupt granted nor his trustee took any interest in the property.'

It follows that the judgment should be reversed and the complaint' dismissed, with costs in this court and in the court below.

Clarke and Sóott, JJ., concurred; Laugh lin and Miller, JJ., dissented.

Miller, J.. (dissenting):

■ This action is- brought by the plaintiff as trustee in bankruptcy of Edward ■ E. Gwynne, deceased, to set aside a conveyance of real estate, made by the-bankrupt to his mother, upon the ground that it was made with intent to hinder, delay and defraud creditors. Upon the merits of that question we see nothing to add to what was said by Mr. Justice Scott on the former appeal. .(129 App. Div. 112.) While there is some additional evidence, respecting prior advances of money by the mother to the son .that did not prove that such advances were loans or that they constituted the consideration for the conveyance in question. The death of the fraudulent grantor, however) presents a point which was not considered upon the former appeal.

While it is conceded that Edward E. Gwynne took a vested ■remainder under the. will of Edith O. Gill, the infant defendants, now assert that that interest was divested upon his death, and that they take under the will of Mrs. Gill. It is urged that the question thus presented should not be adjudicated in this action. .However, all of the parties are before the court. . If the contention of. the appellants is sound, it would, be an idle, thing to set aside the conveyance in question; and the failure to pass upon the question now will merely remit the parties to another lawsuit.

We are thus called upon to construe a clause of the will of Mrs. Gill. It is as follows.: “ On the decease or the remarriage of my said husband, I give and devise all and -singular the real estate above devised to my husband for and during his natural life, or .until he shall re-marry, to my brothers, David Eli Gwynne and Abraham Evan Gwynne in fee share and share alike. I also give and bequeath to my said brothers to be equally divided between them, all my personal property from and after the decease or remarriage of my said husband. Should either of my said brothers die before me, or before the death or the remarriage of my said husband not leaving lawful issue him surviving, then the survivor of them shall have and take the share of the said real and personal estate which the deceased if living would have taken. But if the deceased shall leave lawful issue then I give and devise and bequeath to such issue their parent’s share in said real and personal estate.” The said David Eli Gwynne survived the testatrix, but died before the life tenant, leaving him surviving his son, the said Edward E. Gwynne. The infant defendants are the children of said Edward E.' Gwynne. William F. Gill was living and unmarried at the time of the death of said Edward E- Gwynne.

It may be conceded that “issue” includes grandchildren, and that a gift to issue imports a gift to a class. The sole question is one of construction to determine the point of time fixed by the testatrix for determining those constituting the class who were to take. If that was not to be determined until the death of the life tenant, it must be conceded that, though the remainder vested in Edward E. Gwynne upon the death of his father, David Eli Gwynne, it became divested upon his. death before the death of the life tenant. If, however, the testatrix fixed upon a point of time for determining the members of tlie'class, anterior to the death of the life tenant, such remainder vested in the said Edward E. Gwynne, and was not subject to be divested.

The testatrix devised the remainder to her two brothers in equal shares. If she had stopped there, they would each have taken a vested remainder in an undivided one-half not subject to be divested. But by the subsequent provision she provided in express terms that the share of either should be divested upon his death before the death or remarriage of her husband, and that in case of his death leaving issue, his share should go to such issue. Such, issue plainly meant the issue living upon the death of the parent. If the said Edward E. Gwynne had left no issue, his uncle, the said Abraham Evan Gwynne could not have taken the remainder in question under the will, for by the express terms of the will the surviving brother could take the share of the deceased brother only in case the latter died “not leaving lawful issue him surviving.” That event, i. e., the death of the brother, fixed the point of time for determining who should take. The testatrix did not look so far into the future as to contemplate successive deaths and successive divestings, but provided only for one event, upon which the remainder was to become divested, and was at once to vest absolutely in the issue of the one dying, if he left issue, or in the survivor.

The said Ed ward E. Gwynne was the issue left upon the death of David Eli Gwynne, and he took a vested remainder, which was not subject to become divested.

We have examined the cases cited by the appellants, but none of them applies .to this case.

The judgment should be affirmed, with costs.

Laughlin, J., concurred.

Judgment reversed and complaint dismissed, with costs in this court and in the court below.  