
    Francis W. Whitwell, as Trustee under the Last Will and Testament of William Whitwell, Late of Geneva, N. Y., Deceased, Plaintiff, v. William Whitwell, Individually and as Administrator de Bonis Non of the Estate of Cornelia Tims, Deceased, and Others, Defendants.
    Fourth Department,
    July 11, 1911.
    Will — direction to divide fund at future time —intention of testator — - vesting of interest — definition.
    Where a testamentary gift is found only in a direction to divide a fund at' a future time the gift is future and contingent and not vested:
    But this rule is subordinate to thó primary canon for the construction of ■wills, .that the intention of the testator, as collected from the whole instrument must prevail, and, if- the application, of the subordinate rule would defeat the testator’s intention, it must give way.'
    Thus, where a will provided that in the event of the death of any of the ultimate beneficiaries of the residuary personal estate, which was left in trust, before the legacies became vested in them, or before the time appointed for the distribution of the fund, the legacies- or distributive shares or both of the one orones so dying “ shall not lapse, but shall pass to then- children them surviving in equal shares,” the share of one of such beneficiaries who died before the time appointed for the distribution of the fund vested in his children, and where his only child likewise died before the distribution, the share goes to her personal representatives. Such bequest does not revert to the estate as unbequeathed assets.
    The words “ shall pass to ” are words of express gift.
    Williams, J., dissented, with opinion.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Oode of Civil Procedure.
    
      Frederic D. Whitwell, for the plaintiff.
    
      
      William W. Robison, for the defendants Cornelia A. Robison and William Whitwell.
    
      Lewis W. Keyes, for the defendant John Annan, individually and as administrator, etc.
    
      Frank Rice, for the defendants William Whitwell, as administrator, etc., and others.
   Kruse, J.:

After making certain bequests and devises, the testator, by the 7th and 8 th paragraphs of his will, disposes of all the rest and remainder of his property. .By the 7th paragraph he disposes of the residue of his i;eal estate for life to two nieces therein named, with remainder over to his two nephews, James Tims and William Whitwell, and a niece, Cornelia A. Robison. By the 8th paragraph he disposes of the residue of his personal- property in the same way, but not precisely in the same form. It is there provided that the residue of his personal property- shall be invested and the two' nieces receive the. income, and upon the death of the survivor the residue of the personal property is to be divided equally between the two nephews and the niece.

By the 9th paragraph of the will it is provided that “In the event of the death of James Tims, William Whitwell or Cornelia A. Robison before the legacies hereinbefore bequeathed or devised to them become vested in them or- before the time appointed for the distribution of the residuum of my personal estate, the legacies or distributive shares or both of the one or ones so dying shall not lapse, but Shall pass to their children them surviving in equal shares.”

James Tims died leaving him surviving a daughter, his only child, who also died after the death of Tims. The death of both Tims and his daughter occurred before the time appointed for the distribution of the residuary personal estate, and the question here is whether the share of James Tims in the residuary personal estate is to be regarded as undisposed of assets of the testator, or whether the title thereto vested in the daughter and is to be distributed as a part of her estate.

As regards the share of Thus, the rule is invoked against the personal representatives of his deceased daughter, that when a testamentary gift is found only in a direction to divide at:a . future time, the gift is future and not Immediate; contingent, and not vested. But, as is said by Judge Andrews in Goebel v. Wolf (113 N. Y. 405, 412), this rule, as others of like character, is subordinate to the primary canon of construction that the construction shall follow the intent, to be collected from the whole will, and that the intention of the testator so ascertained must prevail, and that the general rules, adopted by the courts in aid of the interpretation of wills must give way When on a consideration of the scheme of the will, or of special clauses or provisions, their application in the particular case would defeat the intention.-

The explicit declaration of the testator respecting the share of one dying before the time appointed for the distribution of the residuum of the personal estate is that the share of the one so dying shall not lapse, but pass to his children. It seems to me, as pointed out by counsel for the personal representatives of the daughter, that the. expression “ shall pass to is words of express gift; and if the expression a-I hereby give ” had been used, it could not have made the case stronger.

Whether the share in question vested in Tims upon the death of the testator and was divested upon the death of Tims, or was a mere contingent interest which never became vested in Tims at all, I think that upon the death of Tims his share immediately vested in and passed to his daughter, absolutely, subject only to the interest of the life beneficiaries.

If I am right in that conclusion it follows that the share in question belongs to the estate of the daughter, and judgment should be ordered directing the payment of the fund to the administratrix of her estate, with $100 costs to the plaintiff as stipulated.

All concurred, except Williams, J., who dissented in an opinion; Bobson, J., not sitting.

Williams, J.

(dissenting):

Judgment should be directed in favor of the next of kin of the testator, with $100 costs and disbursements to- plaintiff payable by estate.

William Whitwell, the testator, died March 27, 1898, unmarried, leaving the will in question, and leaving as his next of kin William Whitwell and Cornelia A. Eobison, children of John Whitwell, a deceased brother; Hannah Fordon, Cornelia Tims and James Tims, children of Mary Tims, a deceased sister; and Annie Bush, John Annan and Charles Annan, children of Elizabeth Annan, a-deceased sister. By the 1st paragraph of the will deceased provided for the payment of debts, etc. By the following five paragraphs he gave legacies and devised real estate to certain of Ms nephews and nieces. By the 7th paragraph he gave his nieces Hannah Fordon and Cornelia Tims estates for their jomt lives, and the life of the survivor, in the residue of his real property, with remainder over to Ms nephews William Whitwell and James Tims and Ms niece Cornelia A. Eobison, to be divided equally between them. By the 8th paragraph he gave all the residue of his personal property to George A. Fordon and Cornelia Thus in trust, to keep it invested and collect the income and pay it to his nieces Hannah Fordon and Cornelia Tims during their joint lives and the life of the survivor, with remainder over to his nephews James Tims, William Whitwell and his Mece Cornelia A. Eobison. And by the 9th paragraph he provided: In the event of the death of James Tims, WiMam Whitwell or Cornelia A. Eobison before the legacies herembefore bequeathed or devised to them become vested in them or before the time appointed for the distribution of the residuum of my personal estate, the legacies or distributive shares or both of the one or ones so dying shall not lapse, but shall pass to then children them smwivmg in equal shares.” The three persons named m this • 9th paragraph were the same persons who by the 7th and 8th paragraphs were given the remamder m the real and personal estate, and Hannah Fordon and Cornelia Tims were the life beneficiaries under said two paragraphs of the real and personal estate. Both these life beneficiaries are dead, Cornelia Tims having died June 8, 1898, and Hannah Fordon August 30, 1910. James Thus, one of the remamdérmen, died October 22, 1899; the other two are still livmg. There is no dispute but that upon the death of the last life beneficiary the two surviving remamdermen and the heirs of the decóased one became entitled, to the remainder in the real estate, the same having vested in the three remaindermen at the death of the testator. There is no dispute but'that at the time of the death of the' last life' beneficiary the two surviving remaindermen took their two-thirds interest in' the personal estate. The question in dispute is as to the one-third interest which such deceased remainderma’n would have taken if he was still living. He died some eleven years before the death of the last life beneficiary. He left him surviving only one child, a daughter, Minnie E. Tims, who died July 19,1908, some nine years after her father’s death and two years before the death of the last life beneficiary. Where did this one-third interest go on the death of the last life beneficiary ? If the. title thereto vested only on the death of such beneficiary, then neither James Tims nor any children of his were living to take under the will and the one-third in question was unbequeathed assets of the testator’s estate. The representatives of Minnie E. _Tims, the daughter of- James, contend, however, that the title vested in James at the death of the testator and in Minnie at the death of her father and that her estate is entitled to said. one-third. This is the only question to be here determined. It seems to me clear that the title to the personal did not vest in any one -until the death of the last life beneficiary. The will contains no direct words of gift'as to the remainder, but merely a direction to divide. Paragraph 8th gives the property to trustees to keep invested and pay income to the life beneficiaries and on their death to divide the residue. And then the 9th paragraph provides if either remainderman died before the property had become vested or before the time for the distribution of the residuum of the personal, the legacies or distributive share of the one so dying should not lapse but should pass to his or her children. Under these provisions it is quite apparent that the intention of the testator was to vest the residue, of the personal only on the death of the last fife beneficiary. The testator may have intended to make such provisions as to leave no part of his estate undisposed of, but he very likely did not anticipate that both James Tims and his ' daughter Minnie would die before the last life beneficiary, There is no reason, therefore, why the plain language of the will should be disregarded. This result I think must follow under, the well-settled rule in this State, that where the only gift is found in a direction to divide or pay over at a future time, the gift is future and not immediate, contingent and not vested. (Warner v. Durant, 76 N. Y. 136; Smith v. Edwards, 88 id. 92; Matter of Baer, 147 id. 348; Matter of Crane, 164 id. 71; Rudd v. Cornell, 171 id. 114; Matter of Keogh, 112 App. Div. 414; affd. on opinion below, 186 N. Y. 544.)

This rule is recognized by the Court of Appeals in a late case (Riker v. Gwynne, 201 N. Y. 143, 149). In this latter case, however, there were direct words of gift in the will. I do not understand the existence of this rulé is controverted, but the claim made is'that it is not applicable here because the words in the latter part of the 9th paragraph, “shall pass to their children,” etc., amounted to an express gift and carried the title to this personal property on the death of James Tims, dining the life of the beneficiaries, to his daughter Minnie. I do not think such effect should be given to these words. They merely enti-, tied the daughter in the final distribution, if living, to the share her father would have taken if he had then been living. And again it is said this rule should not be applied here because of other considerations drawn, from the .will itself, showing the intent of the testator that title to the personal as well as the real should .vest at the time of his own death. Many cases are cited by counsel on either side and exhaustive arguments made as to the application of the rule, and the cases cited to the facts of the present case. After due consideration, however, I incline to adhere to the opinion already intimated, that the rule referred to should be applied here, there being no indication in the will that the testator intended any other disposition of the residuum of the personal than that which would follow under this rule. The question is a troublesome one' and not free from doubt, but I think judgment should be directed that the one-third of the personal estate is unbeqtieathed assets of the testator’s estate, to be distributed among his next of kin.

Judgment directed in favor of the administratrix of the estate of Minnie E. Tims, deceased, directing payment of the fund to such administratrix, with $100 costs to plaintiff as stipulated.  