
    Charles P Bowditch, Trustee, Resp't, v. Florence Ayrault, by Guardian, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed April 25, 1893.)
    
    
      ' Vul—Construction of—Vesting of legacies.
    The will of testator provided for the creation of several separate and independent trusts, to commence at the time of the testator’s death, and which might last in some cases for the full term permitted by the statute. By the 25th clause the residuary estate was given to a trustee who was directed to convert the same into money and as fast as practicable to divide two-thirds thereof between the children of testator's brothers and sisters, “whomay be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate or any part thereof is distributed; said two-thirds of said residuary estate to be divided between all said children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion which their parent would, if living at such distribution, be entitled under this provision.” Held, that the gift in substance is to the children living at testator’s decease and it then vested, subject to be divested at the death of any child and by the substitution of his or her descendants if any were left. And if there were no such descendants, then the property remained vested in the child and upon his death formed part of his estate subject to be disposed of as the law or his will provided.
    
      Appeal from judgment of the supreme court, general term, fifth department, modifying and affirming an interlocutory judgment.
    
      John P. Bowman, for app'lt; James C. Smith and John Rorbach, for resp't.
    
      
       Modifying 43 St. Rep., 583.
    
   Peckham, J.

The sole question for our determination arises upon the construction to be given to the twenty-fifth clause in the will of Allen Ayrault, who died February 4,1861, then being a resident of the county of Livingston in this state. The will was duly admitted to probate, and everything being in readiness for a final closing up and accounting by the trustee under the will of all matters pertaining thereto, such trustee has brought this action to obtain a construction of the clause in the will above mentioned, and to make a final distribution of the funds in his hands pursuant to the decree of the court.

The will provided for the creation of several separate and independent trusts, to commence at the time of the testator’s death, and which might last in some cases for the full term permitted by, the statute. The following is that portion of the twenty-fifth section which is material to be considered: “ I give, devise and bequeath the rest, residue and remainder of my estate, both personal and real, not hereinbefore disposed of, and such portions of the same as shall remain after the trusts herein provided for are fully discharged and fulfilled, and the legacies lieréin given are paid in full, to my said trustee, to be by him disposed of as follows : I direct him to sell and convey all such estate, real and personal, and convert the same into money, or available means for such purpose, and dispose thereof as follows: I direct him as fast as practicable to divide two-thirds of said residuary estate between all the children of my brother John Ayrault, and my sister Mary Smith, widow of Sparrow Smith, and of my deceased brothers Nicholas Ayrault, Boswell Ayrault, and Lyman Ayrault, and of my ■deceased sister, Emily Griffith, who may be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate or any part thereof is distributed ; said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion to which their parent would, if living at such distribution, be entitled under this provision.”

The balance of the section provides for the disposition of the remaining one-third of the residuum of the estate. The question argued here relates to the vesting of the property to be distributed under the twenty-fifth section.

There is no question that the property is to be regarded as personal and that the rules applicable to that species of property are to be applied here.

The realty is directed to be sold by the trustee and converted into money and to be disposed of as directed in the will. There have been several distributions of portions of the residuum of the estate made by the trustee as from time to time he realized funds for that purpose, and upon accounting made by him before the surrogate of Livingston county, and such distributions have heretofore been made upon the theory that these legacies did not vest until each actual distribution of the estate which might from time to time be made, and in the event of the death of anyone who, if living atthetime of of the distribution, would have been entitled to a share of the property distributed, his descendants would be entitled to his share, but if he died before a particular' distribution was made, without leaving any descendants, his interest passed to the survivors and did not descend to the personal representatives or assignees of the legatee so dying.

The appellant Florence Ayrault is a daughter of Walter Ayrault, deceased, who was a son of the testator’s deceased brother Richolas mentioned in the twenty-fifth clause. She is one of the next of kin of certain nephews and one niece, wha have died since the testator without leaving any descendants, and whose estates have not been recognized by the trustee as entitled to any further share in the distribution of the residuum, and their share has been upon former distributions divided among all the legatees who were entitled at that time to a portion of the residuum then divided, whereas it is now claimed on her- behalf that the shares which would have gone to these deceased nephews and niece had they lived should now be divided among their •next of kin, they having died intestate and without descendants. In such case the share coming to the appellant would be larger than if the other basis of division were adopted.

There now remains a sum slightly exceeding $38,000 to be distributed, and the rule which shall govern therein is "now to be decided.

The general rule is acknowledged by the parties that the law favors the vesting of legacies as soon as possible after the death of the testator. It is, however, a question of intention as to what the will really means, and while it is the inclination of courts to adopt a construction which would permit such vesting, yet they must construe the will as actually made, and not attempt to make one which may seem to them better or wiser than that made by the testator. It is claimed on the part of the plaintiff that the language of this will brings the case strictly within what he states to be the general rule, that where in the case of personalty there is no gift except by way of a direction to the executor or trustee to pay, or to divide and pay at a future time, the vesting of the property in the beneficiary will not take place until that time arrives.

The cases cited by the learned counsel for the plaintiff do not show that there is an absolute and unvarying rule which prohibits the vesting where the language does not in terms make a gift directly to the legatee, and where the direction is to divide and pay at some future time. The intention of the testator is still the guide, and the intention must be sought from the language actually employed.

In reading this will, it seems to us quite plain that the words used by the testator import a gift primarily to the children of his brothers and sisters “ who may be living at the time of ” his decease. The formal gift is made to the trustee, but it is made in ■order that he may convert testator’s residuary estate into money, and as fast as practicable divide two-thirds of it among the children of his brothers and sisters who may be living at the time of his death. Understanding, of course, the uncertainties of life, ho provides for a substitution of the descendants of those children who may be deceased when the estate, or any part, is to be distributed, the descendant to take the share which the parent would have taken if living. The gift is, however, in substance to the children living at his decease, and we think it then vested, subject to be divested by the death of any child and by the substitution of his or her descendants, if any were left. _ If there were no such descendants, then the property remained vested in the child, and upon his death formed part of his estate, subject to be disposed of as the law or his will provided.

We do not think that futurity is annexed to the substance of this gift within the meaning of the expression as cited by Jar-man. 1 Jarman on Wills, 760. The cases cited by that learned author, and commented upon in the brief of counsel for the plaintiff herein, do not present features at all similar to the will here in question.

The gift in reality is not in the future. It is to the children at the time of testator’s death, and if any should die before the distribution, in that event the substitution of his descendants takes place. It is only in the event of his dying leaving descendants that any such substitution is provided for, and if he die before the divis’on and without descendants the will makes no provision for bhe contingency, and the legacy which had vested in him upon the death of the testator goes in that case in the same way as any other vested interest would go, either to his next of kin or to his assignees or legatees.

In brief, we think this case is not one for the application of the rule referred to by counsel, because the meaning of the will is, as it seems to us, quite plainly the other way.

The fact that the residuum of this estate consisted partly of property tied up by trusts created by the testator, which would not probably fall in for some time, does not in our judgment call for a different construction of the clause in question. Many cases ■might be cited and commented upon in the further discussion of this case, but we think no useful purpose would be subserved. We have looked at those cited by counsel for the plain biff and have come to our conclusion as to the true meaning of this will in the light given us by reference to such cases.

Each will must, to a certain extent, be the guide to its own construction, and when as here we have language used which appears to us upon the whole case to import a present gift to these children with a possible substitution of their descendants in their place in case of their death, it is our part to provide for the carrying out of the obvious intent of the testator, so long as no rule is violated which has been laid down and followed by courts in the course of the many decisions upon the subject. We do not think we violate any canon of construction or rule of law by this decision, but on the contrary we will carry out what seems to us to be the intention of the testator as expressed in this clause.

The part payments made by the trustees upon the several past accountings made by them must remain unaffected by our decision herein. Those accountings have been approved by the surrogate and must be regarded as conclusive upon all past transactions and payments covered by them. They form no bar, however, to the proper decision of the question now presented as to the distribution of the property now in the hands of the trustee.

The judgment of the general term of the supreme court must be modified in accordance with the views herein expressed, with costs to the plaintiff and also to the appellant payable out of the fund, and without costs to any of the other parties in this court. If the form of the judgment is not agreed upon, it may be submitted to this court upon notice.

Judgment accordingly.

All concur.  