
    ESTATE OF TIENKEN.
    
      N. Y. Supreme court; Second department; General term;
    
    July, 1891.
    1. Wills; vesting of legacy.
      
      ] A direction in a will to sell the residuary estate upon the death of the widow and divide the proceeds among testator’s children, vests an estate in one of such children who survives the testator, which will pass under the will of such child upon his death before the time of division.-
    
      The same.] A provision of the first will disposing of the share of any child in the event of his death without issue, will be construed to refer only to the death of such child in the lifetime of testator.
    Appeal by Anna M. Tienken from a decree of the Surrogate’s Court of Kings County by which it was adjudged that said appellant had no interest or share in the estate or income thereof under the will of Henry Tienken, deceased, and from an order of said court overruling and dismissing her objections to the account filed by the executors of said will, upon the same ground.
    The materia] facts sufficiently appear in the opinion.
    
      Theo. N. Melvin, for Anna M. Tienken, appellant;
    
      John F. Bullwinkel, for the executors ;
    
      William D. Veeder & George F. Martens, for legatees and devisees, respondents.
    
      
       There is a note on vesting in 18 Abb. N. C, 297.
    
   Barnard, P. J.

Henry Tienken died in Kings county, in October, 1884, leaving a last will and testament and codicil thereto, which have been admitted to probate. The testator left a widow, Anna Tienken, and four children. One of the testator’s sons, Henry M. Tienken, died in October, 1889, leaving a will, and leaving a widow and no children. By his will, he gave all his property to his wife. The question presented is whether the deceased son had any estate under his father’s will which he could transmit by a will of his own. The life estate of the widow is not yet terminated. By the will of the elder Tienken, a life estate is given to his wife in certain land. The rest of his lands were to be managed by his executors, and out of the proceeds, $2,000 a year was to be paid to his wife, and the balance yearly to be divided among his children. Certain real estate might be sold during the existence of the life estate, and one third invested for the widow for life, and the balance divided among his children equally.

The will provided that if any child be dead, leaving issue, the issue should take the father’s share. Certain sums were to be set apart out of the personal property for legacies to certain named grandchildren, payable upon arriving at twenty-one years of age. If any grandchild should die before that time, the legacy to ■ be divided among the children.

The will provided that after the expiration of the life estate the remaining land should be sold and the proceeds divided among the testator’s children. The clause which gives a child’s share in case of his death without issue, means a child who dies during the testator’s life (Embury v. Sheldon, 68 N. Y. 227).

A gift of a life estate with remainder “ upon” and at and after” the termination thereof to children of' testator gives a vested remainder at the death of testator with time of payment only postponed (Livingston v. Greene, 52 N. Y. 124; Stevenson v. Lesley, 70 Id. 515). The will disposes of the whole estate.

Applying these rules to the will it is quite clear that it was the intention of the testator at his death to vest in each child then living an equal share of his estate subject to the life estate. Where a gift is only found in a direction to divide at a future time, the gift is -contingent, but this rule must yield to the intent of the testator.

The point presented is covered by the case of Goeble vs. Wolf (113 N. Y. 405.)

There was no immediate gift to the children. There was nothing on the face of the will that any child should-not take his share in the final division, the distribution was not limited to children “ then” living, or to those of his children who survived the life estate. The court of appeals also gave great weight to the fact that before the life estate ended, certain of the personal property passed at once to the children who survived testator.

We therefore conclude. that the interest of Henry Tienken became vested under his father’s will.

The decree of the surrogate should be modified accordingly. The decree is reversed with costs to appellant out of the estate, and the - proceeding remitted to the surrogate for further action.

Dykman and Pratt, J.J. concurred.  