
    Edith B. Lake, Plaintiff, v. Herbert Ascher, Defendant.
    First Department,
    June 4, 1909.
    Will construed — .when title of remaindermen vests — gift to crass.
    Where a will leaves a portion of the residuary estate in trust, income to the testator’s daughter for life and upon her death the corpus to go to the children of the testator’s grandchild, a son of his daughter, “and if there he more than one of such children, to he divided equally between them ” according to the number of the children of the grandson, upon their arrival at the age of twenty-five years, with a direction to executors to apply the income from the death of 'the life beneficiary to the support and maintenance of the children of the testator’s grandson until they attain the age of twenty-five years, the time of the distribution of the estate is fixed at the death of the daughter.
    
      The estate of the grandchildren which up to the time of the death of the life tenant is liable to open to let in after-born children, becomes vested at her death, although the personal control of the corpus is postponed until the grandchildren arrive at the age of twenty-five years.
    Hence, one who has agreed to purchase the interest of a grandchild1 as it appears in'said will, the interest to be payable upon the vendor’s twenty-fifth birthday, provided that the life tenant be then dead,' or if not deceased, then thereafter ' upon the death of the life tenant, cannot refuse to perform upon the ground that the vendor will not be entitled to receive her interest upon the happening of said events, by reason of th possibility that there may be grandchildren bom after the death of the life tenant.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Isaac W. Goodhue, for the plaintiff.
    
      Mark Eisner, for the defendant.
   Clarke, J.:

The controversy arises upon the lltli clause of the will of Chauncey Kilmer, who died November 1, 1901, leaving a last will and testament dated J une 14, 1900, which was duly probated. This clause gave, devised and bequeathed one-half of the residue of the estate to testator’s executors and trustees in trust for the benefit of his daughter, Ann Augusta Lake, directing them to pay the interest or income thereof to her semi-annually each year during her life, and then provided as follows: “ Upon the death of my said daugh ter, Ann Augusta Lake, I give, devise and bequeath the said one-half of the rest, residue and remainder of my estate, together with all accumulations of interest or income arising therefrom, to the children of my grandson, Louis N. Lake, son of my said daughter, Ann Augusta Lake, and if there be more than one of such children, to be equally divided between them and .to be paid and distributed as follows : My said executors and trustees shall divide said one-half of the rest, residue and remainder of my estate together with all accumulations of interest or income arising therefrom into parts according to the number of such children of the said Louis N. Lake, and pay and deliver to each of said children one of such parts upon his or her arriving at the age of twenty-five years. From the time of the death of my said daughter, Ann Augusta Lake, my said executors and trustees shall apply to the support, education and maintenance of each of the said children of the said Louis 1ST. Lake, the interest or income of the part above bequeathed to him or her until he or she shall attain the age of twenty-five years, such application of said interest or income to he made by my said executors and trustees personally or under their direction, but not through the parents of said children.”

Ann Augusta Lake, the daughter of said testator, is still living. Louis H. Lake, son of said daughter, is also living. Edith B. Lake,' the plaintiff, is the daughter of said Louis and the granddaughter of said Ann Augusta, and will be twenty-two years of age next September. Louis FT. has had only one other child and' she is still living, and would take under the provisions of the said 11th paragraph of the will. .

On February 1,1909, the plaintiff, Edith B. Lake, and the defendant entered into an agreement whereby the defendant was to purchase a one-fiftli part of the interest of this plaintiff in the said-estate, and the plaintiff agreed' that her said interest, as appears in the said paragraph of the will, would be payable to her on her twenty-fifth birthday, provided that ori said' day Ann Augusta Lake be then deceased, or if she be not deceased, then thereafter upon the death of the said Ann Augusta, the life tenant. The said purchase was to be made and completed on the 24th day of February, 1909. On said day defendant refused to perform on the ground that this plaintiff would not be entitled to receive her interest upon reaching lief twenty-fifth birthday if Ann A-ug.usta was then deceased, because the estate would not be distributable, as a matter of law, until the death of Louis FT.- Lake, the son of Ann Augusta, and bécause any children born to the said' Louis FT. after the death of said Ann Augusta- would be entitled to share equally with this plaintiff and that a difficult question of law was involved.

The questions submitted areas follows: Would the children of Louis IT. Lake, living at the time of the death of Ann Augusta Lake, the life tenant, share equally in the trust estate? Would any. children born to the said Louis FT. Lake after the death of said life tenant be excluded from sharing in this estate with those born before the death of the said life tenant ? If both these questions are answered in the affirmative, judgment to be rendered for the plaintiff directing the defendant to perform; if in the negative, in favor of the defendant canceling the agreement of purchase.

I think it is quite clear that both, of these questions should be answered in the affirmative. The words are present words of gift, “ upon the death of my said daughter * * * I give, devise and bequeath * * * to the children of my grandson,” and “ from the time of the death of my said daughter * * * my said executors and trustees shall apply to the support, education and maintenance of each of the said children * * * the interest or income * * * until he or she shall attain the age of twenty-five years.” The time of distribution of the estate is, therefore, fixed as at the death of the daughter, and the estate to the grandchildren which up to that time is liable to open to let in after-born children then becomes vested,'although the time of personal control of the corpus is postponed until the grandchildren arrive at the age of twenty-five years, and if the children have not arrived at the age of twenty-five at the death of the life tenant, nevertheless, the income is to be disposed of for their benefit. It is not possible to construe the plain language of this will so that this estate should be open for forty or fifty years until the death of the son.

In Ellison v. Airey (1 Ves. Sr. 111) there was a devise of £300 to Elizabeth Paxton to be paid at her age of twenty-one or marriage, the interest in the meantime for her mainte'nanee and education, but if she died before twenty-one years or marriage, then to the younger children of her nephew equally to be divided to and among them. Some of the younger children were born before, some after the making of the will, and some after the death of the testator. Hakdwioke, Ld. Oh., said : It is said the word younger must be restrained to the time of making the will, others say to the death of the testatrix, others to the death of Elizabeth under age and before marriage, and others that it should go' to all younger children. * * *' I am of opinion that it means such as should bo younger children at the death of Elizabeth before twenty-one o.'r marriage.”

This case was cited in Ayton v. Ayton (1 Cox Cas. in Eq. 327). There the testator gave his estate in trust during the life of and for the benefit of his wife. On her death the property was to go to the children of one John Ayton and hi§ wife Jane. At the time the action was brought the life tenant was dead, at which time John and his wife had two children, the petitioners in the action. After the death of the life tenant three more children were born. The question squarely before the court was whether the three children born to the said John and Jane Ayton, after the death of the life tenant, should come in and share in the estate with the two children born before the death of the said life tenant. The master of the rolls said : “ So many children as come in essé before the time when the fund is distributable shall be comprehended and no more, the vesting is not to be suspended until other children are born to take away from the shares of the former.”

'In Baldwin v. Karver (1 Cowp. 309) Lord Mansfield said: “ Here the devise is a remainder after two estates tail. Therefore we are clearly of opinion that all the grandchildren in esse at the time when the devise vested were equally entitled to take, which in fact includes all who are before the court, for they were all alive at the death of Richard (the life tenant).”

In 2 Jarman on Wills (6th Am. ed.), 168, it is said : “ Where a particular estate or interest is carved out with a gift over to • the children of the person taking that interest, or the children of any other p'erson, such gift will embrace not only the objects living at the death of. the testator, but all who may subsequently come into existence before the period of distribution. Thus in the case of a devise or bequest to A for life * * * and after his decease to to the children of B, the children, if any, of B living at the death of the testator, together with those who happen to be born during the life of A, the tenant .for life, are entitled, but not those- who may come into existence after the death of A.”

In Matter of Baer (147 N. Y. 348) it is said: “ Where final division and distribution is to be made among a class, the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made.”

■ In Gilliam, v. Guaranty Trust Co. (186 N. Y. 127) it is said: The general rule * * * is well, established that when property at a future date is to pass to a certain class of persons, it will be distributed amongst the persons who compose such class at the date of distribution.”

It follows, therefore, that both questions submitted should be answered in the affirmative and judgment directed for the plaintiff, with costs.

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

Judgment ordered for plaintiff, with costs. Settle order on notice.  