
    Hamilton v. Rodgers.
    By his will, R. devised his whole estate, consisting principally of personal property, to trustees with directions to pay certain annuities out of the income of the estate, and after the “ final cessation ” of said annuities, to distribute the estate among certain children and grandchildren of the testatox-, then living, and the heirs of the body of those deceased, and, in default of such heirs, their brothers and sisters. Held: 1st. That no estate vests in the beneficiaries under the will, until the time for distribution as fixed by the terms of the will. 2nd. The “final cessation ” of annuities mentioned in the will takes place either upon the death of all the annuitants, or upon the surrender or release of their annuities. 3rd. The trustees have no power under the will to purchase in the annuities, and the mere fact that the annuitants declare that they are willing to x-elease their annuities (but not having done so), upon payment to them of a sum in gross, will not authorize the court to order a distribution of the estate, and to decree the payment of such gross sums out of the funds of the estate.
    Error to the District Court of Lawrence county.
    This action was originally brought in the Court of Common Pleas of Lawrence county by Robert R. Hamilton, minor child of Rosalie Rogers Hamilton, by William Means his guardian and next friend; Ellen I. Parkinson, who intermarried with James Spriggs, Allen R. Parkinson, Rosalie R. Parkinson, Anna Olivia Parkinson, Mary M. Parkinson, minor children of Catherine M. Parkinson,' deceased, by William Parkinson, their guardian and next friend; James C. Rodgers and William P. Rodgers, Rosalie Rodgers, minor children of Henry C. Rodgers, deceased, who sue by James C. Rodgers, their next friend, plaintiffs, against James S. Rodgers, Oliver Rodgers, aged sixteen years, minor child of James Rodgers, deceased, Harry O. Rodgers, aged eighteen years, Minnie Hamilton Rodgers, aged sixteen years, Eleanor Matilda Rodgers, aged fourteen years, Clarence Frederick Rogers, aged nine years, minor children of Robert Edwin Rodgers, deceased; Clara R. Rodgers, Nancy Rodgers, Matilda Rodgers, as guardian of Anna Olivia Rodgers, and George Willard, trustee under the last will and testament of James Rodgers, deceased, defendants, to obtain a construction of the last will and testament of James Rodgers, deceased, and to obtain a distribution of his estate thereby devised.
    The testator died in the year 1860, leaving a large estate, consisting principally of personal property. After various bequests and annuities, he devised the whole of his residuary estate as follows:
    . “Sixteenth. I do hereby devise and bequeath to said George Willard and Henry S. Neal all my property, real and personal, wheresoever situate and of whatever character (including the lands in Kentucky opposite Ironton, with the appurtenances, also my dwelling-house in which I now live, and the lands in Hamilton township, bequeathed as aforesaid to my beloved wife, and the dwelling-house, with the lots in Ironton, bequeathed as aforesaid to my daughters-in-law Mary F. Rodgers and Clara Rodgers, upon the determination of the particular estates in said several premises by this will created) which may remain after the payment of my debts, the aforesaid -legacies and the first year annuities herein granted in trust for the following purpose, to wit: First, to sell said real estate whenever they may deem it advantageous for my estate so to do upon such terms either by public or private sale, as they may think best, and in the mean time to rent or lease the same and execute proper conveyances of the same to the'purchaser thereof, to invest the proceeds of said sales and all other funds coming into their hands, either from collections by them made, dividends of stocks owned by me’ or in any other manner or from any other source whatever in such manner as they may conceive most beneficial for my estate, and I further authorize and empower them to change the investments I have hitherto made whenever they may deem it advisable to do so. Second, To pay the expenses of this trust including a yearly compensation to themselves for their services in executing this trust to be allowed by the probate judge. Third, To pay the annuities herein granted, as herein provided, so long as the income of my estate be sufficient, and should it ever at any time prove insufficient, then said annuities shall be paid pro rata, except the one to my beloved wife, which shall be paid in full. And in the execution of this trust I authorize and empower the said trustees to take charge of, manage and control my said property in all things as fully as I now have the right to do, and they shall be held responsible in the execution of this trust only for fraudulent conduct, but said trustees shall make an exhibit yearly to the probate court of Lawrence county of their doings in the premises which I desire to be filed with their accounts as executors.
    
      “Seventeenth. Upon the complete determination of the particular estate herein created, and upon the final cessation of all the aforementioned annuities, 1 direct and require my said trustees to make a final distribution of my estate then remaining, as follows:
    “ To my son James and the heirs of his body, one-sixth;— To my son Thomas and the heirs of his body, one-sixth ; — To my son Oliver and the heirs of his body, one-sixth; — To the children of my son Henry O. Rodgers, and if any of them be deceased, to the heirs of their bodies, one-ninth-To the children of my son Robert Edwin, and if any of them be deceased, to heirs of their bodies, one-ninth; to the children of my daughter Catharine M. Parkinson, and if any of them be deceased, to the heirs of their bodies, one-ninth ; to the children of my daughter Rosalie Hamilton, and if any of them be deceased to the heirs of their bodies, one-sixth; And it is hereby declared to be the true intent and meaning of this direction of distribution, that the children only of deceased children shall inherit, and in case that any of said above-mentioned persons die without heirs of their bodies, that the interest which he would be entitled to shall go to their brothers and sisters.
    “ Eighteenth. Upon the arrival at the age of maturity of either or all my said minor children, to wit: James, Thomas and Oliver, if the same happen before the determination of the aforesaid particular estates and the creation of said annuities, I direct and empower my said trustees to pay to any such son the sum of $2,000, to enable such son to enter- into business, provided if said trustees shall be of opinion that the giving of said sum to said son would be an injury to him, and that he would not expend it in a suitable manner, then I authorize them in their discretion to spend said sum as they may- deem for the well-being of said son, and any sum so going to or expended for such son shall be taken into consideration, and with annual interest thereon shall be charged against such son’s distributive share. Not desiring that any of my grandchildren should become destitute, I hereby authorize and empower my said trustees upon the death of the parents of any such grandchild, or their inability to support them, to provide for a prudent and economical support of any such grandchild, provided, however, that the annuities granted to any parent of such child shall be no longer payable, if the said trustees shall be of opinion that such destitution arises from the bad conduct of any such annuitant.”
    The widow refused to take under the will, and, at the time of commencing this action, the only annuitants living were Clara Creighton, then aged thirty-six years, and Nancy Rodgers, aged sixty years, to whom annuities amounting to $250 and $100 respectively, had been granted, Willard, the sole trustee, Neal having resigned, had converted the whole estate into personal property, consisting of bills receivable, stocks and other securities. All debts had been paid. Of the seven children of the testator, living at the time of his death, his sons James S. and Oliver alone survived ; Thomas died in 1867, unmarried and childless; the others all left children, who have been named as plaintiffs and defendants, and who united in asking for a distribution of the estate under the provisions of item 17 of the will. Clara Creighton and Nancy Rodgers filed answers setting up their light to annuities but offering to release the same upon receipt of a sum in gross. The trustee resisted a distribution, claiming that, by the terms of item 18 of the will, it was made his duty to provide for any of the testator’s grandchildren who might at any time become destitute, and that this was a continuing trust. It was shown at the hearing that for many years prior to the testator’s death his sons Henry and Robert had been unsuccessful in business and were in embarrassed circumstances. Upon appeal the district court .decided that neither the plaintiffs nor any of the devisees were entitled to either a general or partial distribution under the will, and that no such distribution could be had until the death of all the annuitants or all of said annuities should be otherwise terminated. We are now asked to review this decision.
    
      W. H. Enochs, for distributees :
    The object sought by all parties is to have a- partial or final distribution of this estate.
    If the court should find that these annuitants have the right to surrender their annuities, then a final distribution can be made : but if not, then we claim a partial distribution can be made retaining a sufficient amount of the money at interest in the hands of the trustee to pay the annuities and the expenses of the execution of the trust. The intention of the testator should be ascertained and carried out unless contrary to law. This rule is so familiar in Ohio, that I deem it unnecessary to refer the court to authorities. The testator, in using the words “ complete determination ” and “ final cessation ” of all the aforementioned annuities, certainly did not intend thereby to fix the time for final distribution of said estate, to be at the death of all said annuitants. Upon the death of the testator, said annuitants or any of them could have sold or otherwise disposed of their annuities, and upon such sale a complete determination and final cessation of such annuity ceased. Suppose Mrs. Clara Rodgers since the death of the testator had sold her annuity and lost or squandered every cent realized therefrom, and her annuity had been for years and is now drawn by an entire stranger to the testator. It is not unreasonable to claim that the testator fixed the death of said annuitant, with all others as the period and only period at which a distribution of said estate could be made ? I maintain this annuitant or any other created by this will can sell her annuity at any time. If so, upon equitable principles, through, and with the aid of a court of equity, why can she not surrender to this estate her annuity for its value ? If she surrenders it, she is paid from the general fund of the estate. If she retains it she is paid from the sáme source. If all distributees of this estate were of age, is there any doubt of their right to buy out these annuitants and pay for the same out of the general fund of this estate in proportion to their respective interests therein, thereby terminating said annuities ? The same results are attained by a surrender of these annuities for their value, and the only reason they are not so purchased by the distributees is, there are remaining two minor distributees, and the aid of a court of equity is thus sought to accomplish said surrenders and fully protect the interests of said infants. All the distributees now of age and said minors through their guardians, parents and attorneys, are ashing this court to aid said minors in so purchasing said annuities. The will does not say at the death of the annuitants, but upon the complete determination or final cessation of the annuities, then a final distribution shall be made. The words “final distribution” used in this clause would seem to mdicate that partial distributions had been or could be made from time to time according to the necessities of the case. The will creates and classifies distributees and each is independent of the other further than an incumbrance to pay ' annuities. "Why should the share to any one set of distributees be tied up to pay the annuity to another ? The right to a distribution of the entire estate depends on the vesting of the estates created by the will. There being a distinction between the vesting of estates in real and personal property, the rule governing the latter I claim is to be applied in this ease. The will converts the entire property “out and out” into personal property. 36 Ohio St. 17-23, 506 ; Redfield on Wills, 140, §§ 7, 8, 9, 3d edition ; Ilawhins on Wills, American’ notes, 46; Davour v. Matteux, 1 Ves. Sen. 397. These estates became vested on the death of the testator. Hawkins on Wills, American notes, 225, 226, 231, 232, and numerous cases there cited. Linton v. Laycock, 33 Ohio St. 128; Jefferson v. Lawson, 10 Ohio St. 101; Gibson v. McNeely, 11 Ohio St. 101; Brashier v. Marsh, 15 Ohio St. 103; Jarman on Wills, old ed. 733, 734, 735; 36 Ohio St. 506. For a full discussion of the vesting of estates, the court is referred to 2 Redfield on Wills, 3d edition, from page 213 to 260. Also, Jarman on Wills, last edition, by Randolph & Talcott, vol. 2, pp. 406, 450, 453, 482. If the rights of parties are fixed and the estates vested, then the annuitants have the right to sell or dispose of their annuities as they may elect and a final distribution be made. 33 Ohio St. 128, and cases there cited. 36 Ohio St. 506. The language of the will is the “ complete determination,” “ final cessation,” not the death of the parties if the estate was tied up to keep it from the control of creditors of any of the children ; this has been terminated by their deaths. The - testator certainly did not intend to keep the estate from his grandchildren, for that reason. Another objection to the construction given, it makes the devises remote, indefinite and uncertain. 1 Jarman, 259, 260, 261, and cases there cited.
    Another question is, to whom the share of Thomas goes upon distribution — whether to his brothers of the whole blood, or to his brothers and sisters of the whole and half blood alike, or their «heirs ? The court will see that they are all of equal kin .to «the .testator, from whom the estate came to Thomas, and the will,gives .the .share of a child dying without heirs of his body to those wflio would inherit it under the statute of Ohio, S. & C. 501, clause 3 ; S. & S. 304, clause 3. Laws in force at death-of testator. I have been unable to find a case where the term brothers, and sisters, in a will is used, it did not include the half as well as the whole bloods, when all are of the same relation to the testator from whom the estate came. Hawkins i on Wills, 86, and cases there cited; 3 Redfield on Wills, 3d edition, 423, § 7, and cases there cited; Oliver v. Sanders, 8 Ohio St. 501, Without the will the half brothers ■-and -sisters ,of Thomas would inherit his share of the estate. & ,S. ‘304, clause 3; S, Si C. 105, clause 3. An heir is not to be disinherited unless the intention of the testator is clear to that effect. 2 Jarman, 5th rule, 525 (old edition) ; Crane v. Doty, 1 Ohio St. 248. The presumptions are all against disinheriting an heir, and a clear case must be made to warrant such a construction.
    Still another rule of construction gives Thomas’s share to his brothers and sisters and their heirs of the whole and half blood equally. In this regard the will speaks from the death of the testator, and when he refers to classes or fluctuating bodies of persons to whom devises are made, all answering the description at his death, are entitled to take. 1 Redfield on Wills, 3 ed. 385, 386, § 12; 1 Jarman, old ed. 306, 307; Campbell v. Roden, 18 N. Y. 412; Knight v. Knight, 3 Jones Eq. 167. The language of the will is, the interest which he -syould be entitled to shall go to their brothers and sisters. The class here spoken of by the testator, was brothers and sisters, and, as before claimed, this has uniformly been held to inckide the half bloods.
    As to the claim of the trustee that he is liable to be called upon at any time in- the future to furnish support to the grandchildren of the testator to prevent destitution, we say that to so furnish or not is made clearly a discretionary power- in the trustee, and courts of equity never undertake to compel a trustee to act, when to act or not, is a discretionary power. Greenough v. Wells, 10 Cush. 576; Eldridge v. Heard, 106 Mass. 582. Besides, the testator*evidently meant minor children or children of tender years.
    
      Taft & Lloyd, for James and Oliver Rodgers:
    1. Since the case has come to this court on a petition in error, the two remaining annuitants have agreed to accept in full satisfaction .of their claims the sums which the Carlisle tables show to be their present value, which is satisfactory to all parties. They therefore agree to an immediate distribution of the whole fund, and there is no opposition to a distribution unless it be on the part of the trustee, who, however, declares that he has no objection to it, if the court holds it to be safe. He does, however, in his answer, express the opinion that it is necessary that his trust should be continued as long as there shall be any grandchildren who are liable to become destitute; at the same time expressing entire willingness to distribute the estate, if the court shall find that it can be safely done. The construction which Mr. Willard and his counsel — according to his answer — gave this clause, would make it necessary for the trustee to hold this property away from, the children and heirs, until the last grandchild of the testator should expire. That would postpone the distribution unreasonably, a construction which the court never favors. Grandchildren might be born more than twenty-one years after the death of the testator, and this construction would require this trust to be preserved throughout the life of the longest liver of them. But the testator did not by this clause in his will, intend any such thing. By the seventeenth item, the testator provides expressly when the distribution is to take place, viz.: “Upon the complete determination of the particular estates herein created, and upon the final cessation of all the aforementioned annuities, I direct and require my said trustees to make a final distribution of my estate then remaining, as follows,” giving specifically the manner of the distribution to be then made. The clause in the eighteenth item did not intend or purport to contradict or change that positive provision which precedes it, in any manner. The two clauses must be construed together. The intention was, that while the trust continued, and before the estate was divided, the trustees should be at liberty to aid prudently any of his grandchildren who should become destitute. This destitution might happen for the want of this very distribution. There is no expression qualifying the direct, definite, and positive requirement, that the distribution shall be made at the time indicated in item seventeen. If this construction needed corroboration, it could be found in the language of the clause on which the objection turns. It “ provides, that the annuities granted to any parent of such child shall be no longer payable, if the said trustees shall be of opinion that such destitution arises from the bad conduct of any such annuitant;” showing that the support of destitute grandchildren was to be given before the annuities were extinguished.
    2. There is one question which will arise in the making of the distribution, to which we must call the attention of the court. Thomas, a son of the second marriage, died without issue, and unmarried, after the death of his father, viz., on the 18th day of April, 1867. The question is, to whom will his share go in the distribution under the will ?
    The first clause of item seventeen fixes the time of distribution, as we have seen, positively and irrevocably, viz., “ Upon the complete determination of the particular estates herein created, and upon the final cessation of all the annuities.” That is the time when the distribution was to be made, and it was with reference to that time that he designated the distribution. The language is precise, “to eacli of the three sons of the last marriage, and the heirs of their bodies respectively, he gave one-sixth. To the children of each of the children of his fii-st marriage, “ and if any of them be deceased, to the heirs of their bodies, one-ninth.” “ Be deceased ?” When ? Clearly, at the time of said distribution. All these provisions point to that time, and to no other. •
    Some of the children of the first marriage were living, and some were dead, at the time of the making of the will. But the will clearly gives only to his grandchildren, and not to his children, of the first family. He had his reasons. He knew how much he had already given them, and what prospect there was of their making good use of what should be given them. His meaning was clearly expressed; but, by its language, the particular course of distribution was made to depend upon the question, who was living when the distribution should be made? and not upon the question, who was alive when the will was made and proved ? *
    
    He goes on to say that his meaning is, “ that the children only of deceased children shall inherit,” “ and in case that any of said above-mentioned persons die without heirs of their bodies, then the interest which he would be entitled to shall go to their brothers and sisters.” That is, to the surviving brothers and sisters of the person who shall so die without heirs of his or her body. If, for instance, one of the children of Henry should be dead without heirs of his or her body at the time of said distribution, the share of that child would go to its own brothers and sisters, and not to the children of Robert Edwin, or to any other grandchildren of the first marriage; or to James, or to Oliver, of the second marriage, who could not be included among its brothers and sisters. So here, as Thomas is dead without heirs of his body, his share must go to his brothers, as there is no sister surviving.
    No question as to the half-blood arises in the case. If brothers or sisters of the first marriage were alive, the question would arise, whether the share of Thomas, under that clause, would go to the brothers or sisters of the half-blood. But as all the half-brothers and sisters of Thomas will be dead at the time of the distribution, his share goes equally to James and Oliver, his only brothers. This construction is not more literal than it is reasonable, and according to the general plan of division which the testator has laid out in his will.
    As to the period of division and the persons to take, see Andrews v. Partington, 3 Bro. C. C. 401, 404; 1 Roper on Legacies, 71; Leake v. Robinson, 2 Merivale, 382, 3; Jenkins v. Feyer, 4 Paige, 53; Crooke v. Brookling, 2 Vern. 106; 2 Williams on Ex’rs, 1312 and cases cited; Stires v. Van Rensselaer, 2 Bradf, sec. 172; Bain v. Lescher, 11 Linn. 397; Havergal v. Harrison, 7 Beav. 49; Wms. v. Neff, 52 Pa. 333; Todd v. Trott, 64 N. C. 280; Hane's Trust, 2 Sim. N. S. 106; Drakeford v. Drakeford, 33 Beav. 43; Provenchire's Appeal, 67 Pa. 463; Morse v. Mason, 11 Ala. 36; Sterling v. Price, 16 Ohio St. 32; Hoppock v. Tucker, 59 N. Y. 202; Coltman v. Priest, 103 Mass. 296; Jackson v. Roberts, 14 Gray, 551; Shaffer v. Kettell, 14 Al. 528, 530, 531; Balcom v. Haynes, 14 Al. 204; Springer v. Coughton, 30 Geo. 977; Aspinwell v. Duckworth, 35 Beav. 301; Steadman v. Priest, 103 Mass. 293, 296; Bolles v. Smith, 39 Conn. 218; Rickey v. Johnson, 30 Ohio St. 288.
    
      Sage & Hinkle, for the children of Robert E. Rodgers:
    There remain now but two questions to be considered by the court: first, whether the estate shall now be distributed; and, second, if so, who shall have the share given to Thomas. As to the first question, we desire to add nothing to the considerations presented by Taft & Lloyd in their brief. The distribution of the share given to Thomas must be in one of three ways: 1st. to his surviving brothers, and to the children of his deceased brothers and sisters. 2d. To the three brothers, Robert Edwin, James S., and Oliver, who were living at the time of his death; or, 3d. To James S. and Oliver who still survive. The estate'is to be treated as personal property. The sixteenth item of the will empowers and directs the trustees to sell the-real estate and invest the proceeds as they shall deem most beneficial for the estate. The avails of the land therefore go, to all intents, in the same direction as if it had never been land. 3 Redfield on Wills, 140. Though the distribution is deferred, that does not prevent the interest vesting at the death of the testator. 1 Redfield on Wills, 414; Kingsbury v. Scovill, 26 Conn. 349; Doe v. Lawson, 3 East, 278; Raynor v. Mowbray, 3 Bro. C. C. 234; Harrington v. Harte, 1 Cox Ch. Ca. 131; Masters v. Hooper, 4 Bro. C. C. 207.
    We claim, therefore, that the interest of the distributees vested at the death of the testator, and that the executors held in trust for them. It results that upon the death of Thomas his interest vested at once in some or all of the remaining distributees. This disposes of the claim that only the brothers now living, James S. and Oliver, are entitled. The remaining question is, whether Thomas’ share, vested upon his death in his three brothers, James S., Oliver, and Robert Edwin, then living, or in them and the children of the then deceased brothers and sisters. Williams on Executors, 6 Am. ed. foot page 1123, top page 1211; Latchwood’s Appeal, 30 Pa. St. 175; Brent v. Washington's Adm’rs, 18 Gratt. 526. Now, if the devise over to brother and sister, in the eighteenth item of the will, is to the brothers and sisters living at the death of any son or daughter without children, it follows that James S., Oliver, and Robert Edwin became vested with Thomas’ interest upon his death. But we do not think the proper construction of the will leads to this conclusion. Section 56 of the wills act,- then in force (S. & O. 1627), provides that: “When a devise of real or personal estate is made to any child oi other relative of the testator, if such child or other relative shall die, leaving issue surviving the testator, such issue shall take the estate devised, in the same manner as the devisee would have done, if he had survived the testator, unless a different disposition shall be made or required by the will.” This applies as well to the devise over to brother and sisters as to the original devises, and there is nothing in the will making or requiring a different disposition. It is to be borne in mind that every one of the testator’s children was alive when he made his will, and until after his decease. »
    The eighteenth item of the will, the one containing the distributive provision, gives four shares out of seven to the children of children, and in the case of every other child directs the’ distribution to him and the heirs of his body. These provisions do not imply an intent to create a limitation against the testator’s grandchildren, but the contrary. Then the testator declares it to be the true intent and meaning of his direction of distribution, “ that the children only of deceased children shall inherit,” or paraphrasing, without changing the meaning, “ children shall inherit from their deceased parents.” This can have no less meaning than that the grandchildren should take all the interest of their deceased parents. It is impossible to read the eighteenth item of the will and not be impressed that the testator was as mindful of his grandchildren as of children. Finally, he says that if “ any of said above-mentioned persons die without heirs of their bodies, then the interest which he would be entitled to shall go to their brothers and sisters.” Were these words, “brothers and sis.ters,” words of limitation in the mind of the testator, referring to brothers and sisters only who might be living when the contingency should happen, or were they in his mind words of description referring to all his children 2 Cleai’ly the latter. His children were all living; for the three youngest, all minors, he provides directly, for them and the heirs of their bodies. His elder sons, Henry and Robert Edwin, had been unsuccessful in business and were in embarrassed circumstances. To give to them would be only to give to their creditors ; therefore he gives to their children. His two daughters were married, therefore he gives to their children. To each of the younger children, then minors, and to the children of his youngest daughter, Rosalie Hamilton, he gives on'e sixth. To the elder children he had doubtless made advancements, and in simple justice, equalizing his bounty among all, he gives to the children of each, one-ninth. Then he explains, after first saying that grandchildren shall inherit their parents’ shares, that if any child dies without children, his share shall go to his brothers and sisters, meaning, without the shadow of a doubt, in our opinion, all the brothers and sisters, and not those only who might at some uncertain time in the future be surviving.
   Longworth, J.

The first question which arises in the construction of this will is whether an estate vested in the distributees at the time of the testator’s death, or not until the happening of the events upon which a distribution was to take place.

Although conceding that in the interpretation of-wills, courts in general favor that construction under which estates will vest at the time of testator’s death, yet this, like every other rule of construction, will be controlled by the intention of the testator as gathered from the whole will. As was said by Scott, J., in Richey v. Johnson, 30 Ohio St. 288-292: “We are to read the whole will and ascertain not only what the testator has said, but what he has forborne to say ; .and the construction given to any part of the will should conform to its general scope and purpose as collected from the whole document. It is to be observed that the testator gives no interest in the farm in question, or in its proceeds, to his brothers and sisters, or to the children of any of them by way of direct devise or bequest. The gift is to be found only in the direction to distribute the proceeds of its sale and in the designation of the persons among whom distribution is to be made.”

These remarks apply with equal force to the case before us. The only words of gift in the will are to be found in the devise of the whole estate to trustees, and in the direction to distribute the estate, after the determination of the particular estates and the final cessation of the. annuities, among persons, some of whom, perhaps, were yet to be born. Color is given to a contrary construction by the provision directing the trustees to make certain payments to, or provision for the minor sons, when they should become of age, to be thereafter charged against their distributive shares; but, taking the will as a whole, we are persuaded that the real intention of the testator was that no estate should vest in any of the objects of his bounty until the time for distribution should arrive, and then in those persons only who should answer the description at that time. Speaking for myself only I wish to say that it is after much hesitation, and still not without some embarrassing doubts, that I have arrived at this conclusion. These doubts arise from the vague and uncertain language in which the intention of the testator is expressed, and from which no thoroughly satisfactory conclusion can be drawn. Still I am satisfied that the most reasonable and probable interpretation is that given by my brethren.

Has the time then arrived for a distribution of the estate, either final or partial % Clearly not. No partial distribution could be made until it is ascertained who the parties may be who are entitled to take, and this cannot be ascertained until the time arrives for final distribution. And here we may say that we think it clear that but one distribution was ever contemplated by the testator, and that his object in calling it a final ” distribution, was simply to distinguish it from what might be called the partial distribution of $2,000 each to his minor sons when they should come of age.

On the one hand it is contended that the time arrives only upon the death of all of the annuitants ; on the other, that it depends upon the cessation of the annuities as a charge upon the estate by release or otherwise by operation of law. That the latter is the proper interpretation we entertain no doubt. The testator does not speak of the death of the annuitants, but of the “final cessation ” of the annuities; and surely it is but fair to take him to have intended just what he has said. Had he intended to postpone the division of his estate to such time as all of tlie annuitants (one of whom, at least, was at his death little more than a child), should die,- we think he would have taken pains to make such intention appear in plain language. So long as these annuities were outstanding it is evident that no distribution could take place, seeing that these were to be paid only from the income of the estate; but upon their “ final cessation,” as charges upon the estate, no valid reason could exist against a final distribution, unless it should appear that the testator intended a further postponement, and such intention is not to be found either in the words used or in the surrounding circumstances of the case. We are unanimously of opinion that upon the “ final cessation ” of these annuities, either by death or release or surrender to the estate, it will become the duty of the trustee to distribute the estate in accordance with the provisions of the will. True, the trustee alleges in his answer that he knows from conversations held with the deceased that he contemplated a remote period as the time of distribution, but we aye not to regard any such averment. We are to find the intention of the testator in the will itself, and are not at liberty to allow its terms to be varied or contradicted by conversations or parol statements made either before or after its execution. Under neither interpretation, however, has the time for distribution yet arrived; the annuities of Clara Creighton and Nancy Rodgers being still outstanding valid charges upon the income of the whole estate. The widow’s annuity ceased by operation of law when she refused to take under the will, and the others, except the two mentioned, have ceased by the death of their owners; but these two are still in full force. It does not remove this obstacle to say that these ladies are ready and willing to release them to the estate, for they have not yet done so, nor can the court compel them to do so. The trustee clearly has no power under the will to purchase them;' but should their owners see fit to release them to the estate, then, and not until then, will the time arrive for a distribution.

We regard as wholly untenable the claim of the trustee that no distribution can be made so long as there may be grand-children, now living, or hereafter to be born, who may, by possibility, at some time become destitute. Such construction would postpone tbe vesting of tbe estate and its enjoyment beyond tbe lives of all tbe beneficiaries now in being, and for more than twenty-one years thereafter. It is clear to our minds that this provision as to the support of destitute grandchildren was intended to apply only during such time as the estate should remain in the hands of the trustee and pending its distribution, and was not intended to control or limit the time fixed for such distribution by item 17 of the will.

We are asked to decide to whom shall pass upon distribution the share which Thomas Rodgers would have received had he lived. It is stated in argument, although it is not disclosed in the record, that the testator was twice married, and that his younger sons Janies 8., Thomas and Oliver were children of the second marriage. If this be true we are clearly of opinion that the testator, in providing that if any of the persons mentioned as distributees should die without issue “ then the interest which he would be entitled to shall go to theii brothers and sisters,” referred to brothers of the whole bloot, only as respects his own children. This is rendered manifesl from the care taken to exclude his other children from an\ share whatever in his estate. The sons had been uni or tunal ( in business, and were insolvent, and it is evident that the testator believed that a gift to them would have been a gift to their creditors, from which neither his sons nor their children would reap the benefit. The provision in question could apply only to the grandchildren and to these younger sons, seeing that no share could come to the older sons and daughters. We are therefore of opinion that, at the time of distribution, Thomas’ share will pass to his brothers J ames S. and Oliver if they be then living, and to their children if deceased. This conclusion also follows of necessity from our previous holding concerning the vesting of the estate only in the persons answering the description of the will at the time of distribution.

Judgment affirmed.

Johnson, J., did not sit in this case.  