
    Knickerbocker Trust Company, as Substituted Trustee of a Trust Created under the Terms of the Last Will and Testament of William Henry Shelden, Deceased, Plaintiff, v. Lucye M. P. King, Individually and as Administratrix, etc., of Jane Maria Shelden, Deceased, and as Administratrix, etc., of Marie Antoinette Shelden Pinchot, Deceased, and William H. A. Shelden, Defendants.
    First Department,
    June 5, 1908.
    Will — trust — failure of remainderman — distribution of principal.
    Where a testator leaves property in trust during the lives of his widow and a daughter and the only provision in the will relating to the disposition of the principal gives the same to the children of the daughter should she have any, and the daughter dies childless the principal at the termination of the trust should he distributed as intestate property.
    Where it is personal property, one-third goes to the administratrix of testator’s widow and two-thirds to the administratrix of his daughter, his only child, to the exclusion of a grandnephew.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Julien T. Davies, Jr., for the plaintiff.
    
      
      Brainard Tolles [Nicholas Danforth with him on the brief], for the defendant King.
    
      Leavitt J. Hunt, for the defendant Shelden.
   Laughlin, J.:

The plaintiff is the substituted trustee of a trust created under the last will and testament of William Henry Shelden, deceased, which terminated by the death of Marie Antoinette Shelden, the widow of the decedent, on the 11th day of February, 1907. Plaintiff thereafter duly filed a final account, which has been approved by all parties in interest, and it holds a balance of the principal of the trust fund to which conflicting claims are made by the defendant William H. A. Shelden, who is a grandnephew of the testator, and by the defendant Lucye M. P. King, individually, as next of kin of the widow and as administratrix of the estate of the widow of the testator and of his daughter, Jane Maria. After making certain specific legacies, the testator gave to his executors all of the rest of his estate in trust for certain purposes therein mentioned, which will be stated presently. He directed them to convert his estate into cash and to invest the proceeds in bonds and mortgages, and to expend the income arising from $10,000 thereof for the maintenance and education of his daughter, and to pay the balance of the income to his widow until his daughter should attain her majority, and in the event of the death of his widow before the daughter should attain her majority, he directed that such balance of income should be invested for the benefit of the daughter and paid to her when she became twenty-one years of age. In the event that his widow should be living when his daughter became of age, he directed the payment of one-half of the entire income of the trust fund to each of them during the life of the widow, and upon her death that the whole of such income be paid to the daughter during her life. He also expressly provided that in case his daughter should die before her mother, then the mother should receive the entire income during her life, “ and at her death such income shall revert to the estate.” The only provision contained in the will with respect to the disposition of the principal of the trust fund is a clause giving the same to the children of the daughter of the testator, should she have any, to be paid to them after the death of my said daughter and of my wife.” The testator died in the month of December, 1855, being then a resident of the county of Hew York. His will.was duly admitted to probate on the 15th day of January, 1856. He left him surviving his widow and daughter and a brother. The daughter died in the month of May, 1867, unmarried and without issue. The brother died in the month of April, 1861, leaving one son as his only next of kin, who died on the 9th day of January, 1875, leaving a son, the defendant William H. A. Shelden, as his only next of kin. The widow of the testator remarried and left her surviving a daughter, the defendant Lucye M. P. King, as her sole next of kin. At the time of the death of the widow of the testator his grandnephew, the defendant Shelden, was his only surviving next of kin, and he claims the balance of the trust fund as such next of kin, upon the theory that title thereto vested in him on the death of the widow of the testator. His claim is not made under the will, for by the will he takes nothing. There can be no doubt that the fund descends as intestate property, for it was not effectually bequeathed by the will. It never could have been vested in any one under the bequest contained in the will, because there was never issue of the daughter of the testator in whom it could vest. Inasmuch as the daughter of the testator had no issue at the time of his death, we are of opinion that the testator died intestate as to the remainder, but such remainder would have vested in the issue of the daughter upon the birth of such issue, which event never occurred. (Clark v. Cammann, 160 N. Y. 315, 329; Farmers' Loan & Trust Co. v. Ferris, 67 App. Div. 1,11.) There was no residuary clause under which this fund could pass as a lapsed legacy and by reason of the ineffectual bequest it became intestate property. (Lefevre v. Lefevre, 59 N. Y. 434; Howland v. Clendenin, 134 id. 305; Wood v. Keyes, 8 Paige, 365.) It is urged in behalf of defendant Shelden that the provisions of the will show that the testator untended that in the default of issue of his daughter ,1ns next of kin living at the time of the termination of the trust should take. There is no provision of the will indicating such intention ; and if there were, if the fund in question was not effectively bequeathed by the will, it becomes intestate property and passes under the statute of descent or distribution without regard to his intent concerning it. His intent is only important in determining the validity of the will or any provision thereof and the construction of those provisions under which property is effectually devised or bequeathed. (See Tucker v. Tucker, 5 N. Y. 408, 418; Van Nostrand v. Moore, 52 id. 12.) It would doubtless have been competent for the testator to have given the property to his executors in trust during these two lives and to have bequeathed it to his next of kin then living, in which case the next of kin would have taken under the will; but that is not the case here. The next of kin of the testator at the time of his death entitled to take under the Statute of Distributions with respect to intestate property were his widow and his daughter. The submission does not show the nature of the property left by the testator. That, however, is immaterial to the determination of the claim of the defendant Shelden, for if the testator, died intestate, leaving real property, it would have descended to his daughter subject to the dower right of his widow, and the brother of the testator, who was the grandfather of the defendant Shelden, would not have taken any interest therein. If the balance of the principal of the trust fund be the proceeds, in whole or in part, of real property left by the testator, it would seem that in so far as the balance is the proceeds of real property, it should go to the administratrix of the daughter of the testator, for on the assumption that the testator died intestate with respect thereto, probably it should, for the purposes of descent, after the termination of the trust, be regarded as realty, and, with the widow of the testator who had merely a life interest dead, the daughter would take all. In other words, it being vested at the death of the testator in the daughter, subject to the dower interest of her mother, and such interest of both mother and daughter being subject so the trust contained in the will, which would necessarily last until the death of the mother and, therefore, until the expiration of her dower interest, the entire fund, so far as representing the realty, would vest in the daughter. No dower interest survived the widow and upon no theory can any part of this fund be considered as representing such dower. With respect to the personalty the rule would be different, for one-third would vest in the mother under the Statnte of Distributions, and two-tliirds in the daughter, subject to be divested by issue being born to the daughter and surviving her, and to the execution of the trust which related to a life use, and not to the corpus of the estate. Since, however, tlie daughter left no husband or issue her surviving, her mother would take all of her property, both real and personal, provided she died intestate. The submission does not expressly show that the daughter died intestate, but it appears that her stepsister, the defendant King, was appointed administratrix of her estate, which would indicate that there was no will. The daughter died in 1867, but her administratrix was not appointed until the 27th day of Hay, 1907. The interest of the daughter of the testator in the fund should be paid to her administratrix, and the interest of the widow of the testator should be paid to her administratrix. Inasmuch as this fund is now personal property, and there is no evidence that any of it is the proceeds of real estate of the testator, and the daughter of the testator’s widow by a subsequent marriage, who will ultimately take the surplus for distribution, represents both estates as administratrix, and inasmuch as the trust company has assumed that the submission is sufficient to authorize the court to decree the distribution of the fund, we shall assume that the fund is the proceeds of personal property. On that theory the defendant King, as administratrix of her mother, is entitled to one third of the fund, and as administratrix of her stepsister, to the other two-thirds. Judgment is, therefore, ordered in favor of the defendant King, as administratrix of the estate of Marie Antoinette Slielden, deceased, for one-third of the fund, and in favor of the defendant King, as administratrix of the estate of Jane Maria Shelden, deceased, for two-thirds of the fund, with costs.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Judgment ordered for defendant King as stated in opinion, with costs. Settle order on notice. 
      
      See 2 R. S. 96, § 75, subd. 1.—[Rep.
     
      
       See 1 R. S. 740, § 1; Id 751, § 1 et seq.— [Rep.
     