
    Lewis S. Goebel and ano., Ex’rs, etc., App’lts, v. Caroline Wolf, Resp’t, and Mary Froelich et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Wills—Demise—Of future estate—When subordinate to intention OF TESTATOR.
    The general rule that where the only gift is found in a direction to divide at a future time, the gift is future, and not immediate, contingent and not vested, 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 as ascertained must prevail, and that 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.
    3. Same —Trust—For benefit of children—Construction.
    The testator’s will created a trust in the plaintiff’s executors of all his-real property and of all his business and appurtenances, to continue during the life of his wife and the minority of his youngest child. The rents and profits of one-half of the real estate were to be paid to the widow for the support of herself and his minor children. The rents of the other half were to be applied, first to the payment of mortgages upon the property, and after their satisfaction, then to be invested for the benefit of his children. The business was to be conducted by the trustees, and the net income invested for the benefit of his children. The rest of the personalty was to be invested at once for the benefit of his children, and further directing the trustees “to pay (out of the estate generally) and advance to each of my children as they respectively arrive at the age of twenty-one years, or as they respectively marry, the sum of three thousand dollars.” Upon the youngest child reaching his majority the trustees were directed to divide the testator’s estate, real and personal, with all accumulations of interest, “between my children, share and share alike, after deducting all advances made as above provided, to any of my children, so that each of my children shall have and receive an equal share of my estate.” Feld, that the' will vests in each child living at the testator’s death, an equal share of his-estate, subject to the trust during the specified time.
    3. Same—Accumulation. when permitted—How title devolves.
    
      Feld, that the provision for accumulation becomes inoperative as to the share of a deceased minor child upon his death, as an accumulation is only permitted for living objects, and as a consequence, the title to the one-’fourth part of the estate in remainder devloves upon the heirs-at law and next of kin of the deceased child, according to the nature of the property, subject to the trust, and that they are likewise entitled to a like proportionate share of any interest accumulated to the time of the death, and to-such as shall hereafter accrue during the trust period.
    
      Appeal from judgment, supreme court, general term, second department, affirming a judgment entered at the Kings county special term.
    Andrew Froelich died in January, 1886, leaving a wife and four children, the eldest then aged nine years, and the youngest one year. The next to the_youngest has since died, and the widow has re-married. The testator left an estate, consisting- of real estate, his business and appurtenances, and other personal property. The will created a trust in the plaintiffs, his executors, of all his real property, and of his business and appurtenances, to continue during the life of his wife, and the minority of his youngest child. The rents and profits of one-half of the real estate were to be paid to the widow for the support of herself and his minor children. The rents of the other were to be applied, first, to the payment of mortgages upon the property, and after their satisfaction, then to be invested for the benefit of his children. The business was to be consolidated by the trustees, and the net income invested for the benefit of his children. The rest of the personalty was to be invested at once for the benefit of his children. At the majority or marriage of any child, he was to be paid out of the estate generally, the sum of $3,000. Upon the youngest child reaching his majority, the trustees were directed to divide the testator’s whole estate, real and personal, with all accumulations of interest “ between my children, share and share alike, after deduct- ° ing all advances made as above provided, to any of my children, so that each of my children shall have and receive an equal share of my estate.”
    If the testator’s widow was then living, he further directed that such division should be postponed until after her death.
    
      Josiah T. Marean, for app’lts; Isaac Lawson, for resp’t.
   Andrews, J.

No exception was taken to the finding, that by the will in question a valid trust was created in the executors, as trustees, in all the real estate of the testator during the life of the widow, and the minority of his youngest child. The validity of the trust to carry on the business, and in the personalty connected therewith is conceded. We shall, therefore, assume, without examination, that the trusts in the will in their main aspects were legally constituted.

The counsel for the appellant does indeed present the point that the trust as to the one-half of the real estate will terminate in the event of the death of the widow during the minority of the youngest child, but that event has not happened, and may never happen, and the consideration of the question may properly be postponed until the exigency arises which will render its determination necessary.

The practical question in the case grows out of the fact that one of the four infant children of the testator living at his death, has since died under age, without issue, during the trust term, and the point is whether by the true construction of the will the children of the testator took, upon his death, a vested remainder in his real estate, dependent upon the termination of the trust, and also in the jjersonal property embraced therein, or whether the remainder given by the will to the testator’s children, was contingent upon their surviving the term upon which the trusts were limited, and carries the whole estate to such of the four ■children, and those only, who outlive the prescribed period.

On one construction of the will each child took on the testator’s death a future vested estate in the undivided one-fourth part of the father’s property, descendible on the death of any child to his heirs or next of kin, although he may have died during minority and during the trust period. On the other construction the gift of the father’s estate was to such children only as survived the trust term, so that if one died intermediate the death of the testator and the termination of the trust, the survivors would take the whole, or, if three died, the entire estate would vest in the sole survivor, and this although the deceased child or children might have married and left issue surviving at their death, who also survived the period of division.

Two_ leading purposes of the testator in creating the trusts in his will are plainly indicated on the face of the instrument. The first was to provide an income for the support of his wife and of his children during their minority. To accomplish this purpose he provided that -one-half of the rents and income of his estate should be paid by the trustees to his wife in quarterly payments, “for the support and maintenance of herself and my minor children.” The second purpose was to postpone the division of his estate among his children until the termination of the trust term, and meanwhile to accumulate the income not given to his wife, and at the expiration of that period to divide the corpus with the accumulations between his ■children.

But the learned counsel for the appellant contends that the final gift to the children is so framed that only children living at the time of the division are to participate therein, or, in other words that the gift is future and contingent, and to the children as a class, so that in accordance with the general rule of construction in such cases, only such persons of the class as are in existence when the contingency happens, upon which the remainder is limited, are comprehended. Doe v. Sheffield, 13 East., 526; 1 Jar. on Wills (5th ed.), 341.

The clause upon which the appellant relies to sustain the construction that the gift was to the children as a class, and was intended for such children only as should be living at the termination of the trust, is as follows: “And upon the further trust, immediately upon the arrival of my youngest child at the age of twenty-one years, in case my wife shall not then be living, to divide all my estate, real and personal, and the accumulations of interest, equally among my children, share and share alike, after deducting all advances made as above provided, to any of my children, so that each of my children shall have and receive an equal share of my estate. Should my wife be living at the time my youngest child arrives at the age of twenty-one years, then it is my will and pleasure that no division of my estate shall be made until after the death of my said wife.”

When a devise is made or a legacy given, of which the enjoyment is postponed, the leading inquiry upon which the question of vesting or not vesting turns is, whether the gift is immediate, and the time of payment or enjoyment only postponed, or is future or contingent, depending upon the beneficiary arriving of age, or surviving some other person, or the like. Denio. J. Everitt v. Everitt, 29 N. Y., 67.

In harmony with this general role, another general proposition has been formulated, that where the only gift is found in a direction to divide at a future time, the gift is future, and not immediate; contingent, and not vested. Leake v. Robinson, 2 Mer., 363; Warner v. Durant, 76 N. Y., 133; Smith v. Edwards, 88 id., 92.

The latter principle is invoked in this case. There is in the will no gift in terms to the children of the testator, except in the clause of the will above quoted, providing for a division of his estate among his children on the termination of the trust. But the rule invoked, 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 general roles 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.

This was recognized by Sir William Gkant, in'the case cited from Merivales’ reports, who, after stating the general rule that where in a will there is no gift except in a direction to divide at a future time, the gift is contingent, and not vested, adds the qualifications, unless from particular circumstances you are able to collect a contrary intention.”

Many important exceptions have been engrafted on 1 he-rule by the adjudged cases, which are stated in the elementary treatises, and some of which are specially considered in Smith v. Edwards (supra).

In the present will there is, as we have said, no immediate gift in terms of the remainder to the children of the testator living at his death. The question, therefore, is whether upon the whole will such an intention can be collected. We think, that, taking the whole will together, it was the intention of the testator to vest his estate at his death in his then living children, subject to the trust estate in his executors. There is nothing on the face of the will to indicate that the testator contemplated the death of any of his children during minority, or that any of them might not take the equal one-fourth share of his estate on the final division. The gift of the ultimate estate is not in terms to his children living at the time of the division, or to the survivors of his children, but the division is directed to be made “among my children, share and share alike.”

Words of survivorship were not necessary if the gift by construction of law was to the children who should be living at the time of division. But it would' have been very natural that words of survivorship should have been inserted to emphasize his intention, if the testator had intended that only children surviving at that time should be entitled to his estate. The division was to be made “immediately upon the arrival of my youngest child at the age of twenty-one years,” etc. This language, in connection with the other provisions of the third or trust clause of the will, is most consistent with the construction that the time was fixed to define the period of enjoyment of his estate by his children, rather than the period of the vesting of the shares.

There was a manifest propriety in postponing the enjoyment by the ultimate beneficaries of one-half of the real estate to accomplish the testator’s purpose to provide an income for the support and maintenance of the widow and minor children. There was also a good reason for postponing the enjoyment of the other half, for the purpose of paying meanwhile the mortgages and incumbrances out of the income, which the testator directed should be done. The income, after this purpose had been accomplished, the testator directed should be invested for the “benefit of my children.” A similar direction was given in respect to the net profits of the business which he authorized the trustees to carry on after his death. They were to be invested for the “benefit of my children.” There is nowhere in the will any suggestion that the testator had in view any particular children, or surviving children, or children other than the whole number, in any clause or provision of the will But what is quite significant on the point whether the testator intended a vested gift of a future estate to his children living at his death, is the fact that the personal property, not connected with his business, he gave to his children in terms which are conceded to have passed an immediate, absolute title in possession on the testator’s death. But the gift was accomplished by a direction to his trustees “ to invest the same for the benefit of my said children,” using the same langurge to designate the beneficiaries as in the prior cases. But more significant still of the intention of the testator is a provision directing the trustees to “pay and advance to each of my children as they respectively arrive at the age of twenty-one years, or as they respectively marry, the sum of three thousand dollars,” and later on, in the clause relating to the division, the testator directs that the division of the corpus and the accumulations shall be made ‘ ‘ equally among all my children, share and share alike, after deducting all advances made as above provided to any of my children, so that each child may have and receive an equal share of my estate.” It thus appears that the testator, had in contemplation the possible marriage of one or more of his children during minority, and of course possible issue, and next that he treated "the shares of his children as separable and distinct,. and any advance which might be made under the will to a married minor child, as a charge on his or her' share, to be accounted for in the subsequent division. The purpose of the charge, “so that each of my children shall have and receive an equal share of my estate,” implies ownership of the share against which the advance is to be charged.

In Everitt v. Everitt (supra), the circumstance that advancements were authorized to be made to children before the period fixed for the division, was considered as indicating an intent that the shares should be vested on the death of the testator. On the whole, we are of the opinion that the intention of the testator, as derived from a consideration of the whole will, was to vest in each child living at his death an equal share of his estate, subject to the trust during the specified time, and that no settled rule of construction forbids giving effect to such intention. The circumstances, collectively, point to this construction.

The constitution of the trust was convenient to accomplish intermediate purposes between the testator’s death and the final division, viz.: the securing of support and maintenance to his wife and minor children; the payment of mortgages and incumbrances; the carrying on of the business for the benefit of the estate; the accumulation of surplus income during the minority of the children.

This construction also prevents the disinheritance of issue of any child who may marry, and die before the expiration of the trust period, a consequence which no one can doubt the testator never intended. The four vhildien were in the testator’s mind when he made the will, and in all the dispositions and provisions the children, “my children,” were the objects, selecting none and excluding none, and in the provision for advances, the share of each was treated as vested and subject to charge.

The provision for accumulation became inoperative as go the share of the deceased minor child upon his death. An accumulation is only permitted for the benefit of living objects. Bryan v. Knickerbacker, 1 Barb. Ch., 409. We think the consequence of such death was to devolve the title to the one-fourth part of the estate in remainder upon the heirs-at-law and next of kin of the deceased child, according to the nature of the property, subject to the trust, and that they are likewise entitled to a like proportionate share of any income accumulated to the time of the death, and to such as shall hereafter accrue during the trust period.

These views lead to an affirmance of the judgment.

All concur.  