
    In the Matter of the Judicial Settlement of Accounts of J. Moreau Smith et al., Ex’rs.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Will—Cohstbuction—Trust.
    . Testator directed one-third of his estate to be held in trust to pay his son Richard a certain sum. for his support and. for the support and education of his daughter during minority, and directed that if said granddaughter survived her father, she should have one-half of said trust estate,, the remainder to be divided among the heirs at law; but that in no event should Richard have any estate in, or control over, the principal of said one-third. Held, that a trust was created to continue during the lifetime of Richard and not one which would be terminated by the death of his daughter.
    '2. Same—Legacy to gkaudchildben.
    Testator bequeathed the sum of $10,000 to each of his grandchildren, to be paid to them when twenty-five years of age, and provided: “In event of the decease of either of said grandchildren prior to attaining the age of twenty-five years, then I direct the share of such deceased shall be equally divided between the surviving grandchildren share and share alike. All the grandchildren as a class shall take, irrespective of relationship as a brother or sister of a deceased child." Held, that the two children of Richard, born after the testator’s death, were not entitled to any share of the legacy given to their half sister born prior thereto.
    Appeal from judgment of the supreme court, general term, fifth department, affirming decree of surrogata
    In September, 1877, Lewis E. Herrick died, leaving surviving him his widow and two daughters and one son, and also six grandchildren. His son Eichard P. Herrick had one daughter, Emma Dude Herrick, then under eight years of age, and who died in 1884. The widow and the three children of Lewis E. Herrick, and all the grandchildren, with the exception of Emma Dude .Herrick, are still living.
    Lewis E. Herrick left a will dated July 20, 1877, and a codicil dated August 8, 1877. Richard P. Herrick was a widower at the time of his father’s death, but thereafter married a second wife, and by her had two children, born before the death of their half-sister Emma. The son Richard P. Herrick and his two infant ■children are appellants.
    The surrogate, on the accounting, construed the fourth and .fifth clauses of the will. One of the questions raised was as to the duration of the trust created by the fifth clause, and the other velated to the claim of the infant appellants that they were entitled to share in the distribution of the legacy of $10,000 given by the will to their half sister Emma. The surrogate decided that the trust in the fifth clause is to continue during the life of Eichard P. Herrick. He also decided that the two infant appellants are not entitled to share in the legacy of $10,000.
    Some other questions arise on exceptions to the accounts of the ■executor as settled by the surrogate.
    The general term affirmed the decree of the surrogata The fourth and fifth clauses of the will construed by the surrogate are as follows:
    “ Fourth. I give and bequeath to each of my grandchildren the sum of ten thousand dollars, to be paid to them on their severally attaining the age of twenty-five (25) years. I direct that during the minority of any of such grandchildren, and until they shall respectively attain the age of twenty-five years, the said sum shall be invested by my executors in bonds and mortgages or other safe securities, and the interest and proceeds arising therefrom shall be paid semi-annually to. the respective mothers of said children, and in the event of the decease of any mother the said interest shall be added to the principal fund, which, with all accumulations, shall be paid to each of said grandchildren as above mentioned.
    “ In the event of the decease of either of said grandchildren prior to attaining the age of twenty-five years, then I direct that the •share of such deceased shall be equally divided between the surviving grandchildren, share and share alike. All the grandchildren, as a class, shall take irrespective of relationship as a brother or sister of a deceased child. With respect to my granddaughter, Emma Dude, daughter of my son Richard P. Herrick, I direct that the interest arising from the investment of her $10,000, instead of being paid to her mother, shall be added to the one-third part of my estate hereinafter devised and bequeathed to her said father.”
    “ Fifth. After satisfying the foregoing provisions, I direct that all the rest, residue and remainder of my estate, both real and personal, be divided into three (.3) equal portions, and I give, devise .and bequeath one such third part to Helen E. Smith, wife of J. Moreau Smith, one other third part to Emma 0. Morse, wife of Rollin E. Morse, and the remaining one-third part I direct shall be held in trust by my executors upon trust to invest the same ■upon such securities as hereinbefore mentioned, and out of the proceeds arising therefrom to pay to my said son Richard P. Herrick the sum of $100 per month for his support and maintenance, •and for the support, maintenance and education of his daughter Emma Dude Herrick, during her minority, provided and upon the sole condition that after she attains the age of eight years she •shall return to the residence at that time of my wife or her relatives, residing within the state of Hew York, it being anticipated that her father may return and reside with her, but this clause .shall be operative only in the event that iny said grandchild shall be able to, and shall actually reside with her said relatives, either alone, - or with her father, as the case may be, and shall be gov•erned by their tuition, advice and directions, or by the advice and counsel of my executors, or a majority of them, until she attain the age of twenty-five (25) years. In case my said granddaughter shall neglect or refuse to reside with her said relatives during said period intermediate eight and twenty-five years of age, then all the provisions in this will contained relating to my said grandchild shall, during such period of refusal, be •deemed wholly inoperative and void, and shall be construed as if no clause of recognition were had of my said grandchild. In the •event of my said granddaughter surviving her father, Richard P. Herrick, then she shall receive one-half of his one-third part •of the residue of my estate hereinbefore given and devised to him on her arriving at twenty-one years of age, and the remaining moiety of his said one-third part shall be equally divided between my heirs at law, that is, to my said daughters or their several children as a class, in the event of the decease of either my daughters then surviving, share and share alike.
    “In no event shall my said son Richard P. be vested with, receive •or control of the of the said but the same shall be held as a trust estate only, and the income only paid to him. If from sickness or any other unavoidable necessity the: above mentioned provision shall not be sufficient for the support, and maintenance of my said son Richard P. and his daughter-Emma Dude, theh I direct my executors, or a majority of themr to apply such part of the accumulated interest or of the principal fund constituting such one-third part of the residue of my estate as shall, in the judgment of my executors, or a majority of them,, be necessary to supply the deficiency. In the event of the decease of my said son Richard P. leaving no issue surviving him, then I direct that the said one-third part hereinbefore given and devised,, in trust for him, shall revert to my heirs at law, then surviving, and be equally divided between them, share and share alilce.This provision shall not be construed as vesting any estate in my said son Richard P. Herrick, and the words heirs at law shall include my grandchildren then surviving as a class."
    
      Arthur M & W. A. Sutherland, for app’lts; David Hays, for-resp’ts.
    
      
       Affirming 35 St. Rep., 999; see 33 St. Rep., 1033.
    
   Andrews, J.

We find no basis for the claim that the trust, created by the fifth clause of the will terminated at the death of Emma Dude Herrick, the daughter of the testator’s son Richard. It is true that the duration of the trust is not expressly declared. But it was created primarily for the benefit of the testator’s son Richard, and the inference that it was to continue during his life is plain. The benefit of the daughter was incidental and subordinate to the main purpose of the testator. The income from the trust estate was to be paid to Richard in monthly payments, and it was left to him to apply it to the support of himself and his-daughter during her minority, and the condition annexed to her right to support and maintenance was apparently inserted as a means of securing a compliance by the granddaughter with the testator’s wish that she should reside with the relatives designated.

The death of the father is the event upon which the trust by necessary implication is limited, and the gift over is upon that event alone. The gift over on the contingency of the death of. Richard, leaving no issue surviving, is preceded by the clause, “in no event shall my son Richard P. be vested with, receive or control any part of the principal of the said one-third, but the same-shall be held as a trust estate only and the income only paid to-him.”

These two provisions seem to be conclusive that the trust waste continue during Richard’s life.

The rule that the gift of the income of property is a gift of the property itself, only applies when there is no limitation of time-attached to the gift. A gift of income followed by a gift over of the corpus on the happening of a contingency, or on the death of the beneficiary, by necessary construction - and without express-words, is a gift of the income for the intermediate period only.

The other question of construction relates to the claim of the two children of Richard P. Herrick by his second wife to share-in the legacy of $10,000 given to their half sister, Emma Dude-Herrick, by the fourth clause of the will. The claim of the appellants on this branch of the case is based on the general rule which has been declared in many cases that where a legacy is .given to a class of persons, distributable at a time subsequent to .the death of the testator, all persons in being at the time appointed for the distribution, who answer the description, whether bora before or after the death of the testator, are deemed to be objects •of the gift, and are entitled to share. Teed v. Morton, 60 N. Y., 506, and cases cited. This construction is placed on the presumed intention of the testator. In the case which most frequently occurs, of a legacy to A. for life, and, after his death, to the children of A., this presumption is founded upon strong probability, .since in such a case the immediate object of the testator’s beneficence is A., and it is natural to-suppose that the children of A. were made ultimate beneficiaries by reason of their relationship to A., and all bearing that relation when the fund is distributable would be within the motive. The rule applies whether the legacy (if future) is vested or contingent

In the one case those of the class existing at the death of the itestator take a vested interest subject to open- and let in persons of the class subsequently born and living at the time appointed for the division; in the other the happening of the event determines both the vesting and the persons entitled to take. See Tucker v. Bishop, 16 N. Y., 402.

But it is obvious that a testator may devote his gift to a whole ■class, or restrict it to certain individuals of a class; to persons of a class living at his death, or to such persons and all others who may belong to the class at the period of distribution. It is a ■question of intention, and where the question arises judicially it is to be determined by the intention declared by the will and the res ■gesto,. We think the intention in the will in question to include grandchildren not born at the testator’s death in the benefit of the legacies which fail by the death of any grandchild before the age of twenty-five, is negatived on the face of the will.

The testator made no direct provision for unborn grandchildren. He gave to each of his living grandchildren a legacy of $10,000. He says'to “each of my grandchildren.’’ and admittedly only living grandchildren take a primary legacy. The construction of these words is the same as if the testator had named each of the six grandchildren, in place of using the words “ each of my grandchildren.’’ The contention 'is that the meaning of the word "“grandchildren” used in the direct bequest is enlarged when the testator in the same clause provides for the devolution of the share of any grandchild dying before attaining the age of twenty-five years. The language of the provision is “in the event of the decease of either of said grandchildren prior to attaining the age ■of twenty-five years, I direct the share of such deceased shall be equally divided between the surviving grandchildren share and share alike.” The natural meaning and reading refers the words ■“surviving grandchildren" in this sentence to the survivors of ’the grandchildren"previously designated. It would wrench the manifest sense of the clause to give it any other interpretation. There is no doubt that the word “ survivors ” refers to a survivor-ship at the death of the grandchild, and not at the death of the-testator. But what survivors, is the question to be determined. The answer plainly is, survivors of the six legatees, all of whom were of the same degree of relationship with the testator and constituted a class, although not all the individuals who at sometime were grandchildren of the testator.

Reference to a paragraph in the fifth clause of the will shows with great distinctness that the testator, in framing his will, either' did not have grandchildren who might be born after his death in mind, or that be did not intend to provide for them. ' In the gift, over of the trust fund in the event of the death of Richard before-the death of his daughter Emma, he gives one moiety to Emma, and the other moiety to the testator’s daughters, making no provision whatever for any children Richard might have who should be born after the testator's death". Richard was then a young man and his remarriage was probable and did in fact occur. This-omission is qqite significant that the testator did not intend in the-gift over of Emma’s legacy on her death before twenty-five that." brothers or sisters who might be born after his death should share-in the distribution.

"We think the judgments below on this point follow the natural and reasonable interpretation of the will, and that the two children of Richard, born after the testator’s death, are not entitled to-any share of the legacy given to their half-sister Emma.

There are some other questions which arose on the accounting. They are fully considered in the opinion of the surrogate, and we-think were correctly decided.

We discover no error in the judgment, and it should, therefore, be affirmed.

All concur, except Earl, Oh. J., and Peckham, J.; not voting,, and Maynard, J., absent  