
    Tucker and wife v. Bishop, Executor.
    A testator bequeathed his residuary personal estate to his executors, in trust, to invest the same, declaring that one-half, principal and interest, should be for the benefit of the children of a grandson, the other half for those of a granddaughter, “ and to be paid over in the following mannerOne-half of the income to be applied annually for the benefit of the children of each grandchild respectively; and whenever either of the children of the grandson should come of age, to pay over to that child his or her proportion of the one-half of said principal; with the same provision for the children of the granddaughter; Held, First. That each of the great-grandchildren living at the death of the testator took an immediate vested interest in an equal share of the fund bequeathed to the children of his parent, subject to be diminished in quantity by the birth of subsequent children before the first child of the class became of age; Second. That if the uncertainty of the quantity of the interest of the children in being at the death of the testator would suspend the power of alienation ( as, per Paige, J., it does not), such suspension could only endure for one life in being at the creation of the estate, that of the parent; Third. That, therefore, the will involves no illegal suspension of the absolute ownership or power of alienation.
    Appeal from the Supreme Court. Peckham Barker, by his will, dated January 6, 1851, after bequeathing several legacies, gave and bequeathed, in the twelfth clause thereof. to W. S. Bishop and E. Peck, his executors, all the rest and residue of his personal property, in trust, as follows: “ My executors are hereby directed to invest the avails of said property in proper and safe securities, one-half of which sum, principal and interest, shall be for the benefit of the children of Jane A. B. Tucker, and the other half, principal and interest, shall be for the benefit of the children of Augustin B. Childs, and to be paid over in the manner following, viz.: My executors are hereby required to apply one-half of the income and interest of the said personal property, annually, for the benefit of the said children of Jane A. B. Tucker, • and the other half to the children of said A. B. Childs. And whenever either of the children of the said Jane shall come of age, my executors are to pay over to that child his or her proportion of the one-half of said principal; and whenever either of the children of said A. B. Childs shall come of age, to pay to such child his proportion thereof; and so till the whole principal and interest is paid out and expended.” The testator died on the 10th of August, 1853, leaving no children, and only two grandchildren, to wit, the said Jane A. B. Tucker and A. B. Childs. At the time of the death of the testator, Jane A. B. Tucker had living three children, and A. B. Childs six children. Jane A. B. Tucker has had another child born since the death of the testator, and which is still living. Peck, one of the executors appointed by the will, renounced. Mrs. Tucker, claiming that the residuary bequest above stated was void, as suspending the absolute ownership for a longer period than two lives in being at the death of the testator, the parties agreed upon a case and submitted it to the Supreme Court, which, at general term in the seventh district, rendered a judgment declaring the provisions of the will legal and valid, from which an appeal was taken to this court.
    
      J. L. Angle, for the appellant.
    
      TV. S. Bishop, in person.
   Paige, J.

As a general rule, a will of personal estate speaks as of the time of the testator’s death. Where a bequest is to a class of individuals, in general terms, as “ to the children of A,” and no period is fixed for the distribution of the legacy, the time for distribution will be the death of the testator; and hence only children born or begotten prior to and in esse at that time will be entitled to share in the distribution. But where the distribution is, by the terms of the will, to be made at some time subsequent to the death of the testator, the gift will embrace not only all children living at the death of the testator, but also all those who shall subsequently come, into existence before the period of distribution; and if the bequest is a present bequest, the beneficiaries who are in esse at the death of the testator will take vested interests in the fund, but subject to open and let in after-born children, who shall come into being and belong to the class at the time appointed for the distribution. Where the period of distribution is postponed until the attainment of a given age by the children, the gift will apply only to those who are living at the death of the testator, and who shall have come into existence before the first child attains the age named, being the period when the fund is first distributable in respect to any one object or member of the class. Where the members of a class take vested interests in a legacy distributable at a period subsequent to the death of the testator, but subject to open and let in after-born children, they take their vested interests in their shares subject to the distribution of those shares, as the number of members of the class is increased by future births; and on the death of any of the children previous to the period for distribution, their shares will go to their respective representatives. (Collin v. Collin, 1 Barb. Ch. R., 636; Jenkins v. Freyer, 4 Paige, 53; Davidson v. Dallas, 14 Ves., 576; Hill V. Chapman, 1 id., 405; 2 Jar. on Wills, 76, 79, 408; Middleton v. Messenger, 5 Ves., 136 ; Clarke v. Clarke, 8 Sim,, 59, Walker v. Shore, 15 Ves., 122; Whitbread v. Lord St. John, 10 Ves., 152.)

The language of the will in this case plainly indicates an intention on the part of the testator to make a present bequest of the residue of his personal estate to the children of Jane A. B. Tucker and of Augustin B. Childs: one moiety in equal shares to the children of Mrs. Tucker, and the other moiety in like shares to the children of A. B. Childs, to be distributable among them as they respectively attained the age of twenty-one years. The testator bequeaths the residue of his personal property to his executors, in trust, to invest the avails in safe securities; and directs that one-half of the amount, principal and interest, shall be for the benefit of the children of Jane A. B. Tucker, and the other half, principal and interest, shall be for the benefit of the children of Augustin B. Childs; and he directs his executors to pay over to each of the children of Mrs. Tucker his or her proportion of the one-half of such principal, when he or she shall come of age; and he makes the like direction in relation to the children of A. B. Childs; and the testator also directs his executors (until the distribution) to apply one-half of the income for the benefit of the children of Mrs. Tucker, and the other half to the children of A. B. Childs. This is the ordinary case of an absolute gift of a legacy accompanied by a direction postponing the time of payment; as, for instance, that it be paid when the legatee attains the age of twenty-one. In all such cases, the time of payment is not of the substance of the gift, and does not postpone the vesting of the legacy. The legacy is due, though payable at a future time. Even where there is in terms no absolute gift of a legacy, as where it is given when the legatee shall attain or provided he does attain the age of twenty-one, but the testator directs the interest of the legacy to be applied in the meantime for the benefit of the legatee, as there is an absolute gift of the interest, the principal will be deemed to have vested. (Paterson v. Ellis, 11 Wend., 259, 268-271.) In this case there is not only an absolute gift of the legacy, but there is also an absolute gift of the interest which shall accrue upon it until the period for the payment of the principal shall arrive. The words used by the testator import not only a present bequest of the residue of his personal estate to the children of Mrs. Tucker and of A. B. Childs, one moiety to each class of children, but also a bequest of the moieties to the children of each family, in equal shares. The law presumes that a testator, when he bequeaths a fund generally to a class, intends that the mem bers of the class shall share equally in the fund bequeathed; and such is the legal meaning of such a bequest. As the children of Mrs. Tucker and of A. B. Childs took an immediately vested interest in their respective shares of the residue of the personal estate, there was no suspension of the power of alienation of such shares. The uncertainty of the quantity of the interest of the children in esse at the death of the testator, growing out of the possible diminution of-their shares by subsequent births,- could not have the effect of suspending the power of alienation. Whatever interest the children in esse at the death of the testator had in the fund, at any time prior to the majority of the child who first attained twenty-one, whether diminished in quantity by the augmentation of the members of the class or not, was susceptible of alienation by a next friend or guardian, acting under an order of‘ the court. Expectant estates are now alienable in the same manner as estates in possession. '(1 R. S., 725, 4 35; 2 R. S., 194, § 170, 1st ed.) Besides, if the uncertainty of the quantity of the interest of the children in esse at the death of the testator could operate in suspending the power of alienation, the suspension could not exceed the continuance of more than one life in being at the creation of the estate, viz., that of either Mrs. Tucker or A. B. Childs, and therefore it could not invalidate the bequest. The child of Mrs. Tucker, born since the death of the testator, is entitled upon the principles hereinbefore stated to share in the distribution of the moiety bequeathed to her children.

My opinion is that the bequest in question is a valid disposition of thé residue of the personal estate, and that therefore the judgment of the supreme court should be affirmed.

All the judges concurring,

Judgment affirmed.  