
    Ingham K. Truesdell, Respondent, v. Fannie L. Pierce, Appellant, Impleaded with James H. Truesdell and Others, Defendants.
    Second Department,
    September 10, 1912.
    Will — trust with remainder to “surviving children” construed.
    A testator gave a legacy to each of his five children, save G. and F., for whom he created separate trusts. The trust for G. was as follows: “ I give, devise and bequeath in trust to my executors $5,000, the interest to be paid or given annually in quarterly payments to my son George W. Truesdell, and at his decease I direct that the said $5,000 be divided equally between his children of lawful issue, if he has any, and if he has none, the same to be divided equally and given to my surviving children.” At the time of G.’s death without issue all of the testator’s children, save F., had died leaving children.
    Held, that, in view of other provisions of the will, it was the intention of the testator to leave the remainder to his children living at G.’s death, and, hence, F. takes the entire amount.
    Hirschberg, J., dissented.
    Appeal by the defendant, Fannie L. Pierce, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of July, 1911, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the said defendant’s demurrer to the complaint.
    
      Henry Rusk [George Wood with him on the brief], for the appellant.
    
      Joseph A. Greene, for the respondent.
   Thomas, J.:

Truesdell, testator, by will gave a legacy to each of his five children, so as to vest a gift in each, save George, and his daughter Fannie, now Mrs. Pierce, for whom he created separate trust. This action concerns the trust for George, which is: “Fifth. I give, devise and bequeath in trust to my executors $5,000, the interest to he paid or given annually .in quarterly payments to my son George W. Truesdell, and at his decease I direct that the said $5,000 he divided equally between his children of lawful issue, if he has any, and if he has none, the same to be divided equally and given to my surviving children.” At the time of George’s death without issue, all of the testator’s children, save Mrs. Pierce, had died, leaving children. The question is, does Pierce take all or do the grandchildren also share upon the theory that the words of survivor-ship refer to the death of the testator, at which time their ancestors were living. At- the testator’s death the trustees took title, and held it -until George died, when they should transfer it to those entitled, to George’s children, or in default thereof to the surviving children of the testator. The surviving children were entitled to an estate in case George died without issue, and' so their estate was contingent. (Hennessy v. Patterson, 85 N. Y. 91.) Did the testator in effect say to his. trustees: “At the time of G.’s death you will deliver to his issue, or if there he none, to my children living at my death, or, if any one of them has died, then to those entitled through him?” 'The will is ordinarily presumed to have relation to conditions existing at the time of the testator’s death, but this well-recognized rule yields to the testator’s intention. In view of the whole will, I consider that the testator was thinking of persons living at G.’s death! In the 3d clause he left $5,000 in trust for Fannie for life, and said “ at her death I direct that the said $5,000 be divided equally between my surviving children.” If the survivorship in this provision, as well as in that made for George, refers to the testator’s death, in each case the life tenant would take by remainder as well as for life. I consider that he was looking forward to a time remote from his death, when his son George should have died, when the trustees should deliver the fund to persons answering the description of George’s children,- or his own children. The condition then interested him, and he thought that George’s children would come into possession, if he had any; if not, his surviving cMldren would receive. The gift is in trust for George for life, to his issue in remainder,' and, in default thereof, to testator’s “surviving children.” Assume that George had a child at the testator’s death, or at any time before George’s death, it would have taken a vested remainder, subject to the right of children later born to share. Therefore, testator’s children living at his death could not also have a vested remainder, inasmuch as their interest would only arise in case George had no issue.

There is another aid to this interpretation. There was a trust for the benefit of the testator’s wife, and, at her death, a direction as to the subject of it “ to divide equally between my children.” Then followed specific gifts, two in trust, with a remainder as stated, and then a residuary gift of the estate to “my children.” If children and surviving children both refer to all his children living at his death, he differentiated in his language to convey the same thought. In my judgment Mrs. Pierce takes the remainder, albeit in exception to a well-settled and more commonly observed rule. In consideration of the present question the court at times has been influenced to adopt the construction whenever possible which will avoid intestacy, cause the vesting of the estate and avoid the disinheritance of remaindermen dying before the termination of the life estate. Such considerations have here little weight. The testator left a widow and children, Darius, Sylvester, Titus, George and Fannie (now Mrs. Pierce). The testator gave certain property in trust with the qualified power of sale of the homestead to his executors, and, at his wife’s death, directed his executors to divide the same equally between his children, share and share alike. He then gave to his son Darius by way of canceling indebtedness the sum of about $5,500, to his son Sylvester his market property and $3,000, to his son Titus $6,000, while for his son George and his daughter Fannie he gave $5,000 in trust. In the case of Fannie he directed that at her death the money should be divided equally between “my surviving children,” while in the case of George the will is that “at his decease I direct that the said $5,000 be divided equally between, his children of lawful issue, if he has any, and, if he has none, the same to be divided equally and given to my surviving children,” and the final gift is of the residuary which he gives “ to my children to be divided equally among them share and share alike.”- It is. evident in this will that full and absolute provision was inade for every child except George and Fannie, and that the others received more largely than they did, and that the interests given to them vested at the death of the testator, so that there is no question of disinheritance, as each Of the other children had his share or more, and there is no special equity in construing gifts to Fannie and George so as to invest remainders' in the other children or their children. According to the construction urged by the plaintiff, although Fannie or George were each made beneficiary for life, yet each was also made a remainderman in the very fund out of which the life estate was created. According to such construction, if George died without issue, his share would go back to Darius, Fannie, Sylvester, George and Titus, and if Fannie thereafter died, her share would go hack to Darius, Fannie, Sylvester, George and Titus, so that Fannie and George, each being dead, would take as if he or she were living. This is a case where the only gift is found in a direction to provide at a future time by the way of a contingent remainder, and the time of survivorship relates to the death of the beneficiary for life. (Matter of Crane, 164 N. Y. 71; Matter of Baer, 141 id. 348.) Such a case is distinguished, from that of Moore v. Lyons (25 Wend. 119) and similar cases. It is not conceivable that the testator, when he was looking forward to the period when George should die without issue, was thinking that the trustee should go back to the time of the testator’s death, ascertain who his children were, and who their children, were, and thus find the class or classes to whom distribution should be made. He was thinking of a far away period when an event should happen whereupon the trustees would perform the simple act of dividing the property among his own children who should, survive to that time. To him it would have appeared an absurdity that George should, although dead, take as if living upon the event of his dyin.

The trustees invested the fund in bond and mortgage, and ■ upon foreclosure took title to the land. Later one trustee died" and one was removed, and the question has arisen, what shall the substituted trustee do with the land. The appellant is contented to take title from him. As to that the court in this action for partition will not advise. The present decision- is that the action of partition cannot be maintained.

The judgment should be reversed and judgment ordered sustaining the demurrer, with costs.

Jenks, P. J., Carr and Woodward, JJ., concurred; Hirschberg, J., dissented.

Interlocutory judgment reversed and judgment ordered sustaining the demurrer, with costs.  