
    Clerihew Rutan Treat, Appellant, v. Charles W. Vose and Others, Respondents.
    
      Will — when the shares in real estate of the beneficiaries of an invalid trust will be held to vest as legal estates — rights of unborn children.
    
    The will of a testatrix bequeathed a legacy of $1,000 to each of her three grandchildren, to be paid upon their respectively arriving at the age of twenty-five years, and then provided: “2d. I give, devise and bequeath unto Fanny Yose,. wife of my son Charles, real estate known :as No. 59 Cheever Place, nevertheless strictly in trust for the support of himself and children and said Fanny, his wife, the children on arriving at twenty-five years of age entitled to their share, excepting a room for my sister Nancy to have the use and occupancy during her natural life and her death to cease.”
    
      Held, that the will failed to'create a valid trust in the real estate, but that , the, court would, in furtherance of the evident desire of the testatrix, hold that the-title to the property vested in Charles W. Yose, his wife Fanny and their two-children who were living at the time of the death of the testatrix, possession, to be held by the parents until the children should arrive at the age of twenty-five years, when the children were to come into possession of their shares;
    That the testatrix, having made a valid devise of the real estate, a person claiming solely as an heir at law of the testatrix had no interest in the property. Quca'e, whether after-born children of Charles W. Yose and his wife Fanny would be entitled to shares in the estate.
    Appeal by the plaintiff, Clerihew Rutan Treat, from a judgment-of the Supreme Court in favor of the defendants, entered in the-office of the clerk of the county of Kings on the 8th day of April, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term in an action for the construction of a-will.
    
      Milton Hopkins, for the appellant.
    
      John H. Kemble, for the respondents.
   Woodward, J.:

On the; 11th day of September, 1882, Mary Ann Yose, of the- then city of Brooklyn, made, executed and published her last will and testament, in which she provided a legacy of $1,000 for each of her three-grandchildren, naming them, to be paid upon their, respectively arriving at the age of twenty-five years. She also provided, and it is to-this-portion of the will that -the present controversy is directed, “ 2d, I give, devise and bequeath unto Fanny Vose, wife of my son Charles, real estate known as No. 59 Cheever Place, nevertheless^ strictly in trust for the support of himself and children and said Fanny, his wife, the children on arriving at twenty-five years of age entitled to their share, excepting a room for my sister Nancy to have the use and occupancy during her natural life and her death to cease,” etc. The plaintiff in the present action took a conveyance of all the right, title and interest of Cornelius Bushnell Hughston in the estate of his grandmother, the testatrix, and this action is brought upon the theory that the clause of the will above quoted is null and void, and that the property vested, upon the death of Mary Ann Vose, in Charles W. Vose and Cornelius Bushnell Hughston, her only heirs at law. Mrs. Vose died on September 16, 1888, and Cornelius Bushnell Hughston, with his wife, conveyed whatever of interest, as an heir at law of the testatrix, he may have had on June 28,1899. Hpon the trial of the action the learned court at Special Term held that while the attempt to create a trust was ineffectual, “ the dispositions of said will respecting said premises were valid and effectual, and that the plaintiff or his grantors have no right, title or interest in and to said premises or the rents and profits thereof.” In a memorandum opinion the court says: “In my opinion the effect of the devise is the same as if made directly to the son and his wife and their children for their support in which case the title would have vested in them in fee, each taking a one-quarter share, the corpus of the shares of the children not to come into their possession until they arrive at the age of twenty-five years.” The plaintiff appeals from the judgment entered.

It can hardly be questioned that the clause in the will now under consideration failed to create a valid trust, and it is, therefore, unprofitable to discuss that feature of the case. We are, primarily, to give construction to the will of the testatrix; we are to gather from its language the intent of the person making such will, and it can hardly be questioned that Mrs. Vose intended to dispose of her property for the- benefit of her son, his wife and children. She had provided a specific legacy for each of her three grandchildren, had made a provision for a sister who was expected to survive her but who has since died, and made no arrangement for the disposition of any of the estate which might be left upon the death of those for whom she attempted to create a trust estate. The fact that she provided that the children of her son should have their .share on reaching the age of twenty-five indicates clearly that she contemplated a division of the property into shares; and we think it is entirely proper, in furtherance of the evident desire of the testatrix, to hold that the title vested in Charles W. Yose, his wife, Fanny, and the two children who were living at the time of the death of the testatrix, possession to be held by the parents until the children should arrive at the age of twenty-five years, when the children were to come into possession of their shares. It was clearly not the intention of the' testatrix to allow Cornelius Bushnell Hughston to have any greater share in her estate than she had already provided, and it would seem that under the provisions of sections 72 and 73 of the Beal Property Law (Laws of 1896, chap. 547) the title tó the premises in dispute would vest immediately in the beneficiaries indicated by the will.- It may be that after-born children might have an interest in the estate, but this is not sufficient to give the plaintiff any rights in the present action. If the testatrix made a valid devise of her property to any one, or to any group of persons, whether yet in being or not, it would be sufficient to defeat any claims on the part of heirs at law, and it is through such an one that the present plaintiff claims.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  