
    QUADE v. BERTSCH et al.
    (‘Supreme Court, Appellate Division, Second Department.
    November 15,1901.)
    1 Wills—Power op Disposition—Suspension.
    Testator, by his will, gave all his property to trustees to collect the income, pay taxes, repairs, and expenses, and the balance to his wife for life, and on her death to divide the estate into as many shares as there might be then living of their present children, including children who had died leaving issue, and on the death of each such child leaving issue to distribute the share of each child to such issue in equal shares, provided no share should be paid until the recipient is 21 years of age. Held, that on the death of the widow the estate was to be divided, and on the death of each of testator’s children the class to take his share was determined, and their rights therein vested, and hence the will was not invalid as providing an unlawful suspension of the power of disposition.
    2. Same—Minority.
    Where a legacy to a grandchild is not invalid otherwise than as an unlawful suspension of the power of disposition, such legacy will not become invalid because not to be paid to such child until he is 21 years of age.
    Appeal from special term, Kings county.
    Action by Caroline Quade against Peter Bertsch, individually and as executor and trustee under the will of William Broistedt, and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    This is an appeal from the judgment of the special term in an action brought to declare certain portions of the will of William Broistedt, deceased, invalid, in that they unlawfully suspended the ownership of personal property. The testator gave his estate to his executors upon trust for the following uses and purposes: “To collect and receive the rents, income, and profits of all my estate, real and personal, and after paying therefrom all taxes, assessments, and other charges upon my real estate, and keeping the buildings and improvements thereon in repair and insured, to apply the net income arising from my estate to the use óf my wife, Caroline, during the term of her natural life, or so long as she shall remain unmarried. In case my said wife shall remarry after my decease, then I direct my said executors and trustees to provide for and pay over to her from and after such remarriage, and during her natural life, the sum of $5,000 per annum, which last-mentioned income shall be all she shall have or receive from my estate from and after such remarriage. And I do hereby declare that the provisions herein made for my said wife are intended to be and are in lieu and bar of her dower and thirds in my estate. That at the death or remarriage of my wife I authorize, empower, and direct my executors and trustees, or such of them as may assume the execution of the trusts hereby created, to divide my estate into six equal parts or shares, and invest the same separately on bond or mortgage, or in United States government or state securities, and apply the net income of one of said equal sixth parts or shares to the use of my daughter Amelia Bertsch, wife of Peter Bertsch, during her natural life, and at her decease to pay, divide, and distribute the principal of such equal sixth part or share to and among the lawful issue of my said daughter Amelia equally; and upon the further trust to apply the net income of one other of the said equal sixth parts or shares to the use of my daughter Augusta during her life, and at her decease to pay, divide, and distribute the principal of such last-mentioned equal sixth part or share to and among the lawful issue of my said daughter Augusta equally; and upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Caroline during her life, and at her decease to pay, divide, and distribute the principal of such last-mentioned equal sixth part or share to and among the lawful issue of my said daughter Caroline equally; and upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Mena during her natural life, and at her decease to pay, divide, and distribute the principal of such last-mentioned sixth part or share to and among the lawful issue of my said daughter Mena equally; and upon the further trust to apply the net income of one 'other of said equal sixth parts or shares to the use of my son, Henry Broistedt, during his natural life, and at his decease to pay, divide, and distribute the principal of such last-mentioned sixth part or share to and among the lawful issue of my said son, Henry, equally; and upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Hannah during her natural life, and at her decease to pay, divide, and distribute the principal of such last-mentioned part or share to and among the lawful issue of my said daughter Hannah equally. In ease either or any of my children shall die before me, or before the death or remarriage of my wife, or in case any child or children shall hereafter be born to me, who shall survive the death or remarriage of my wife, then it is my will that my executors upon the death or remarriage of my wife, instead of dividing my estate into six equal parts or shares as above provided, shall divide my estate into so many equal parts or shares as may be necessary to provide one for the use of each of my children then living, and one for the descendant or descendants then living of either or any of my children who may have died before the decease or remarriage of my said wife, and invest the same separately as above provided, and designate and set apart one of such shares for the use of each of my children then-living and one for the descendant or descendants of each of my children who may have died leaving issue them surviving (per stirpes, and not per capita); and upon the further trust to apply the net income of each share set apart for my children as aforesaid to the use of the child for whom it shall be designated during his or her natural life, and at the decease of the child for whom it shall be set apart as aforesaid to pay, divide, and distribute the principal to and among the lawful issue of such child equally as and when such issue respectively attain the age of twenty-one years; and upon the-further trust to pay, divide, and distribute the share designated and set apart for the descendant or descendants of any child who may have died before-the death or remarriage of my wife to and among such descendants equally as and when they respectively attain the age of twenty-one years.” One of the children of the testator died previous to the death of the widow.
    Argued before GOODRICH, P. J„ and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ.
    Albert K. Newman, for appellant.
    Louis Ehrenberg, George S. Espenscheid, and Thomas H. Troy, for respondents.
   JENICS, J.

As the absolute ownership is suspended for the life of the widow and for each share during the life of each child of the testator, the practical question upon this appeal is whether the gifts to the grandchildren are vested or contingent; or, in other words," is time annexed to the gifts, or only to the payments thereof ? The learned counsel for the appellant insists upon the application of certain familiar rules .of construction recently reiterated in Warner v. Durant, 76 N. Y. 133, Re Baer, 147 N. Y. 348, 41 N. E. 702, and Re Crane, 164 N. Y. 71, 58 N. E. 47. The intent of the testator, as gathered from the four corners of the will, is the cardinal canon of construction, and the rules invoked by the appellant, like almost all other rules, are said to be subordinate to it, and not destructive of it. Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760; In re Crane, supra; Goebel v. Wolf, 113 N. Y. 405, 412, 21 N. E. 388, 10 Am. St. Rep. 464; In re Young, 145 N. Y. 536, 538, 40 N. E. 226. It is our duty first to search diligently throughout the will to find, if possible, in the scheme, the provisions, and the text thereof, the intent of the testator, mindful, too, that the law favors the vesting of estates. Dougherty v. Thompson, supra; In re Seebeck, 140 N. Y. 241, 246, 35 N. E. 429. At the death of the wife the executors are directed to set apart one of the shares of the estate for each child, and in the case of the death of any child before the wife its share is to be paid, divided, and distributed to and among its lawful issue as and when such issue become 21 years of age. In Patterson v. Ellis’ Ex’rs, 11 Wend. 260, 276, the court said that there was no doubt that a legacy vested when it was separated from the testator’s estate and invested in the name of the legatee. Though it may be said that such severance was necessary to the scheme which required a division at the death of the wife, }ret this is not precisely the case, inasmuch as the testator might have provided that the shares of the children respectively should be carved out of the corpus. Further, there is the direction to set apart, provide, and invest for the descendants “then living,”—that is, the class that is to take is then determined; and it is such share that is to be paid, divided, and distributed among such descendants equally “as and when” they respectively attain the age of 21 years. There is nothing to indicate that the testator contemplated the death of any such descendants during minority. The gift is not made to such descendants as may be living at the age of 21 years, or to the survivors or survivor of them who may attain majority. And it has been held that such omission is indicative of intent. Goebel v. Wolf, supra; Townshend v. Frommer, 125 N. Y. 446, 26 N. E. 805. The testator does not make the gift if such descendants attain the age of 21 years, or provided they attain that age, but only indicates the period which must elapse before the payment can be demanded. Bushnell v. Carpenter, 92 N. Y. 272. If the testator had intended that the estate was not to vest until the period of the majorities, it is far to Seek his reason for the omission of all provisions as to the interest or income upon the shares in question. In Du Bois v. Ray, 35 N. Y. 162, 167, such omission was considered to be strong evidence against an intention of the suspension of ownership for that period of time. See, too, Manice v. Manice, 43 N. Y. 303, 366; Clancy v. O’Gara, 4 Abb. N. C. 268, 273. The original provision plainly directs,a vesting of a similar estate in the same natural objects of his bounty; and the substitutionary scheme is clearly modeled upon" it, and is but written to meet the contingency of-the death of any of his children before that of his widow. No reason suggests itself why the testator should in any way recast the scheme so far as it affected those who remained in the same relation to him. I am of opinion that the intent of the testator is that the gifts to the descendants were not suspended, but vested upon the death of the widow, and that the time of payment is but postponed. 2 Jarm. Wills (Rand. & T. Ed.) 417, note; Hoxie v. Hoxie, 7 Paige, 187, 192; Gray, Perp. p. 73, note. Gray, supra, says:

“In certain classes of legacies, to "be paid when the legatee reaches twenty-one or some other age named, the courts construe the gift as an absolute one to the legatee, his executors and .administrators, and the direction for payment as given solely for the benefit .of or on account of the legatee; that is, they regard the legacy as certain to become payable in any event,—payable when the legatee reaches 21 (or other age), if he so long lives; but, if he dies before that time, payable immediately to his executors or administrators. Such a legacy is properly called vested, because it is. certain to take effect at some time, although the time may be earlier in one event than in another, exactly as a remainder after an estate to a widow until her death or remarriage is vested. Now, the fact that such a legacy is vested is brought out in practice by the circumstance that the executor of the legatee takes it, and the incident of transmissibility has thus come to be regarded as the essential characteristic of a vested interest, and. has given rise to the secondary meaning of the term ‘vested.’ ”

The law is not concerned with such a suspension as is natural to the object of the gift, such as infancy. Beardsley v. Hotchkiss, 96 N. Y. 201; Everitt v. Everitt, 29 N. Y. 39, 77; Livingston v. Tucker, 107 N. Y. 549, 552, 14 N. E. 443; Craig v. Craig, 3 Barb. Ch. 76. The children are not made joint tenants by the provision as to per stirpes, and so no minority other than their own, respectively, is interposed. Van Brunt v. Van Brunt, 111 N. Y. 178, 187, 19 N. E. 60. Even.if the testator did attempt to create a trust estate, the trust would be illegal, and could .have no force or effect upon the question at bar (Smith v. Edwards, 88 N. Y. 92, 102, 103), while the deferring of payment, through the creation of a power in trust meanwhile, is not a suspension of the absolute ownership of property (Bliven v. Seymour, 88 N. Y. 469, 478; Vanderpoel v. Loew, 112 N. Y. 167, 186, et seq., 19 N. E. 481 ; Everitt v. Everitt, supra).

The judgment must be affirmed, with costs. All concur.  