
    William A. Carr, Respondent, v. Emily A. Smith, as Sole Executrix, etc., of Edmund A. Smith, Deceased, Appellant.
    
      Remainders — when vested although given only by a direction ” to divide” a fund.
    
    The rule that, where the only gift in a will consists in a direction to divide at a future time, the gift is contingent and not vested and is divisible among those who at the time of the division answer the description of remaindermen, is not ' an absolute one, but must yield to the intention of' the testator as ascertained from a consideration of the whole will.
    Where a testator has, in other parts of his will, used the word “ divide ” with the intention of passing a vested interest, and his evident intention was to make a present disposition of all his property to those persons whom he desired to have it, and to name each such person, a provision by which he directs his executors to invest a certain sum, to pay its income to his mother for life and after her death to “divide ” the principal-sum between three persons named, share and' share alike, should be so construed as to give to each of such persons a vested remainder in one-third of the fund, taking effect at the death of the testator.
    . Appeal by the defendant, Emily A. Smith, as sole executrix, etc., of Edmund A. Smith, deceased, from a judgment of the Supreme Court in favor of- the- plaintiff,, entered in the office of the clerk of the county of Hew York on the 16th day of July, 1897, upon the report of a referee, and also from an order entered in said clerk’s office on the 16th day of July, 1897, granting the plaintiff an extra allowance.
    
      
      Philip S.Dean, for the appellant.
    
      Louis Marshall, for the respondent.
   Rumsey, J.:

The 3d provision of the 5th clause of the will .of Edmund A. Smith, deceased, was as follows : “I direct my executors to invest the sum of $20,000 in safe and productive securities and pay the income arising therefrom semi-annually, to my mother, Hannah Smith, during her natural life, and after her death to divide the principal sum between Lewis Adam Wilson and Annie Louisa Wilson and Annie Smith, the daughter of my deceased brother, Abel, share and share alike.” Mrs. Hannah Smith, the person to whom the income of this fund was payable for life, is dead, as also is Annie Smith, one of the persons named to receive the remainder. The interest of Annie Smith in the fund has been assigned to the plaintiff and he brings this action to recover it. The sole question presented is whether, by the provisions of the clause above quoted, a vested remainder in one-third of that fund was given to Annie Smith. The learned referee concluded from an examination of all the provisions of the will that it was the intention of the testator that a remainder should be vested in the three persons to whom this fund was to be given after the death of Hannah Smith. The correctness, of this conclusion is challenged by the appellant, who insists that the construction of the'will is controlled by the rule that where in a will the only gift is contained in a direction to divide at a future time, it is contingent and not vested and is to be divided among those persons who answer the description of remaindermen at the time when the division is to take place. The general rule is undoubtedly well settled as claimed by the appellant (Smith v. Edwards, 88 N. Y. 104; Matter of Baer, 147 id. 348); but, as has many times been said, the rule is not invariable and always applicable, even in a case where the sole gift is contained in a direction to divide, and it will not be applied if, from a consideration of the whole will, it is to be collected that the intention of the testator was to give a vested remainder. (Goebel v. Wolf, 113 N. Y. 405; Campbell v. Stokes, 142 id. 23 ; Smith v. Edwards, supra.) In all cases it is the duty of the court in construing a grant or a will, to search out the intention of the testator or grantor and construe the instrument so as to carry out that intention unless such construction is absolutely inconsistent with some well-settled' rule of law. The intention of the testator is to be sought of course from the whole will. ' In examining this will the first thing to be noticed is that the testator has evidently intended to make a present disposition of all of his property to those persons whom he desired to have it, and that he has not intended to leave to future developments - the selection of the persons who should share in the bounties created by his will. ' It is evident from the whole will that the testator intended to name each person whom he proposed to share in his property after his death. By the 5th clause he has undertaken to create certain trusts in a portion of his property and the persons who are to share in those trusts are especially selected and named by him. He has set apart a sum of money to be held during the life of his sister, for her benefit, which he has disposed of after her death, and he has also set apart the sum in question for his mother for her' life, to be disposed of after her death. ^In each case he has not left the persons- to whom the money is to be given after the death of the life tenant in any uncertainty whatever, nor has he mentioned a class of persons among, whom, the property shall be divided, but he has especially named the particular persons and the portion which each person is to taker In the case of the fund which is set apart for his sister, he has prescribed that after her death that fund should be divided between her two children and their heirs, thus' expressing his intention that those two children should have the whole interest in that fund. So, in the • division of the fund which is the subject of this action, the testator \has expressed tile share which each person should take, and thereby has expressly indicated his desire that that particular share should belong to each one of the legatees.'''In the next item of the 5th •clause of the will, after setting apart these two funds and providing for their disposition not only during the existence of-the trust, but after its termination, he disposes of the remainder of his estate.' It is to be noticed that he commences the residuary clause in these words : “I direct my executors, after providing for the above bequests,” thus expressing his idea, that the provisions in the 2d and. 3d items ■of the 5tli clause. of his will were actually gifts. ' After thus providing for those bequests he directs his executors to divide the rest ;and residue of his estate equally between his wife and children, the principal of each child, however, not to be paid until the children respectively arrive at the age of thirty years, the interest arising therefrom to accumulate during their minority, and, on their attaining'the age of'twenty-one years, the interest to be paid to each of said children until he reaches the age of thirty. The gift in that clause, as it will be noticed, is also given by the use of the word “ divide,” and in no other way, but there can be no cpiestion that the effect of that clause is to give each one of, his children a vested interest in the share which is to be given to him. In fact, in a consideration of that very clause, the Court of Appeals has held that the effect of it was to give to each of the children an interest in his share of the remainder which, vested in him at the time of the death of the testator. (Matter of Murphy, 144 N. Y. 557.) It is quite clear, therefore, that, by the direction to divide in that clause of the will, the testator intended to give a vested interest to each one of the persons among whom the division was to be made. It is almost necessarily to be inferred from this that the word divide, which was used with the intention of passing a vested interest in the 4th subdivision of the 5th clause was used with the same intention in the 2d and 3d subdivisions, where it appears in the same connection. We find, therefore, in this will a plain indication. that the testator intended to give to each of the persons among whom the remainders were to be divided a vested remainder. That being so, the rule is settled that the presumption is that the disposition was to take effect in interest at the date of the death • of the testator. (Nelson v. Russell, 135 N. Y. 137.) The law favors the vesting of legacies, and even where there is no gift, except by way of a direction to pay, the legacy will be construed to be vested if an intent to that effect on the part of the testator is fairly to be inferred from the whole will. (Bowditch v. Ayrault, 138 N. Y. 222.)

For these reasons we think that the conclusion reached by the referee was correct, and the judgment entered upon his report must, be affirmed, with costs.

.Yan Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  