
    
      In re Tienken.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1891.)
    Wills—Rights of Legatees—Dying without Issue.
    Testator devised his property to his widow for life, directing that after the life-estate the property should be sold, and the proceeds divided among his children, and that, if any child should die leaving issue, such issue should take the parent’s share. Held, that the children of testator living at the time of his death took a vested interest under such devise.
    
      Appeal from surrogate’s court, Kings county.
    Application by Anna M. Tienken to require Anna Tienken, as executrix, and John BulLwinkel, as executor, of the will of Henry Tienken, deceased, to render an account, and for a decree requiring the executor and executrix to pay to petitioner her distributive share of the legacy given to Henry ÍT. Tienken, deceased, petitioner’s husband, by the will of Henry Tienken, deceased. The following opinion was filed by Abbott, S., on the hearing:
    “The testator devises his residence at Flalbush to his wife, Anna Tienken, ‘ for and during the period of her natural life.’ He does not make any disposition of the remainder, except in so far as it is embraced in his residuary estate, and is included in the general disposition of that. The rest, residue, and remainder of his real property he devises to his executors, in trust, during the life of his wife, to collect the rents and profits of the same; to pay therefrom the sum of two thousand dollars per annum to his wife. After the payment of such annuity of two thousand dollars, to pay the taxes, repairs, etc., and to * apply the balance or remainder once a year between my children, share and share alike, for their use, benefit, and maintenance.’ He empowered his executors ‘ to sell and convey at any time,’ certain improved real property in St. John’s place, in the city of Brooklyn; and, ‘in the event that it may be necessary to take the property located in the north-west corneiof Myrtle avenue and Bridge street, in the city of Brooklyn, for the purpose of opening an avenue or street-,’ he authorizes his executors to sell such property. In case such sales are made, the testator directs his executors ‘ to keep and hold the one-third of the proceeds of such sale in trust for my said wife during her life, by investing the same, * * * and' pay over to her once a year the interest or other income arising out of such investment, and pay the balance or remainder of the proceeds arising out of a sale as aforesaid equally between my children, share and share alike. ’ The eighth clause of testator’s will is as follows: ‘ Whereas, in this will is mentioned and described gifts, devises, and bequests to my children, if any of them should be dead leaving issue surviving them, I do direct that the issue of any of my children deceased, shall take the same share their parent would have received had such parent remained living, and to be divided among them, the said issue, equally, share and share alike.’ After certain legacies of personal property, the testator then directs: ‘ Tenth. After the death of my wife, I empower and direct the surving executors to sell all of my real estate remaining unsold at private or public sale, in fee-simple absolute, by deed under seal, at the best possible price, and divide the proceeds equally between my children, share and share alike.’ There is a codicil to testator’s will, which contains nothing material to the questions submitted for my decision. The testator, Henry Tienken, left him surviving his widow, Anna Tienken, and four children, but no-children of any deceased child. The widow, Anna, and all of his' children, except one, still survive. One son of the testator, Henry M. Tienken, died October 31, 1889, leaving his widow, Anna M. Tienken, but no child surviving. He left a last will and testament, which has been duly proven, by which he devises and bequeaths all his property to his widow, Anna M. Tienken. It now becomes necessary for me to determine what interest, if any, Anna M. Tienken acquired by virtue of her husband’s will in the trust property, and the income thereof, in the hands of the executors and trustees of the will of Henry Tienken, deceased. The vacant property in St. John’s place was sold by the executors of Henry Tienken, by virtue of the power of sale contained in the fifth clause of his will, during the life-time of his son, Henry M. Tienken, and the proceeds of sale were divided and distributed, as in said clause directed, viz.: One-third thereof retained by them and invested for the benefit of testator’s widow, and the remaining two-thirds divided equally among the testatorls children, including the said Henry M. Tienken. The contingency provided for in the sixth clause of the will has not happened, and consequently the property at the corner of Myrtle avenue and Bridge street has not been sold. The question presented for my determination is by no means an easy one to answer. The will is badly drawn, and, whatever the testator’s intention may have been, it is certainly very difficult to glean it from the context of his will. There are a few propositions, however, which seem to be plainly expressed in the instrument. The title to the homestead at Flatbush is vested in Anna Tienken, the widow of the testator, during her life, and the title to the residue of testator’s real property is vested in the testator’s trustees during the life of Anna Tienken, for the purposes of the trust'; and the will contains a valid direction that all the ‘real estate remaining unsold ’ be sold, and the proceeds divided ‘equally between my children, share and share alike.’ This direction certainly operates as an equitable conversion of such real property into personal property, and it is equally certain that such conversion is not to take place until ‘after the decease’ of Anna Tienken, the testator’s widow. Until the happening of that event, the executors have no power to sell and convey the real property, except as to the two parcels mentioned in clauses fifth and sixth. The will, taken as a whole, bears strong evidence of an intention on the part of the testator to vest in his children, from the time of his death, an absolute interest and property in his residuary estate. They are all to share in the income of the trust-estate with the widow, Anna. No disposition is made of the share of any child to the residuary estate, in the event of his decease without issue. They hav'e shared equally the proceeds of salé of such part of the real property .as the executors have sold under the special power granted under the fifth clause of the will. The personal property is bequeathed absolutely, one-third to the widow and two-thirds equally among his children, and this has already been distributed among the legateees. The general scheme of the will strongly indicates an intention on the part of the testator that the respective interests of his widow and children shall be defined and determined as of the date of the testator’s death. Notwithstanding my strong conviction that the testator wished to express the intention indicated, yet he has not legally done so in the instrument in question. The residuary real property is not to be equitably converted until after the decease of Anna." Until the happening of that event, it retains its character as real property. It is the proceeds of the sale of this property which is to be divided. It is a legacy of personal property, which does not and cannot exist until after Anna’s decease. I am unable to perceive any distinction between the principle which controls the direction of this will and that laid down in Warner v. Durant, 76 N. Y. 133; Vincent v. Newhouse, 83 N. Y. 505; Ship-man v. Hollins, 98 N. Y. 311, and Delafleld v. Shipman, 103 N. Y. 464, 9 N. B. Rep. 184. Citations from two of these cases state the principle which is recognized in all of them. In Warner v. Durant, supra. Judge Folger, at the commencement of his opinion, at page 136, says: • This case presents the question whether a legacy became vested in the legatee in his life-time, though he died before the time fixed for payment. It is a general principle, where the gift was absolute, and the time of payment only postponed, time, not being of the substance of the gift, but relating only to the payment, does not suspend the gift, but merely defers the payment. This principle will not act in this case to vest the legacy; for the gift was not, in the outset, to the legatee. And another rule is to be noticed. It is this: Where there is no gift, but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives.’ In Vincent v. Newhouse, 83 N. Y. at page 511, Judge DanEORTH says: ‘ The testator empowers and directs the executors to sell the land and divide the proceeds. There is then intended a conversion of the land into money, and it is this money which the beneficiaries are to have. The actual conversion, however, is not to take place until or at the death of the widow or life-tenant; and we may say here, as was said by the master of the rolls in Hoghton v. Whitgreave, 1 Jac. & W. 146: “Not only was there no bequest before the widow’s death, but the subject-matter then did not exist in the shape and form in which it is given.”’ I do not think that the principle laid down in the cases cited, as applied to the provisions of the will under consideration, conflict with Goebel v. Wolf, 113 N. Y. 405, 21 N. E. Rep. 388. In that case no equitable conversion of the residuary estate was directed. Under the tenth clause of the will the legacies are to testator’s children as a class, and vest at the termination of the life-estate. Henry M. Tienken died, without leaving issue, before the legal existence of the subject-matter bequeathed. Applying the rule that legacies given to a class of persons vest in those who answer the description, and are capable of taking at the time of distribution, (Teed v. Morton, 60 N. Y. 502; Delaney v. McCormack, 88 N. Y. 174; Goebel v. Wolf, 113 N. Y. 405, 21 N. E. Rep. 388,) it follows that the children surviving at the termination of .the life-estate must be deemed the objects of the gift; and that the widow of Henry M. Tienken is not entitled to any share in the estate of Henry Tienken by virtue of her husband’s will, or in any manner.
    
      “Dated Brooklyn, January 7, 1891.”
    The petitioner, Anna M. Tienken, appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Theodore N. Melvin, for appellant. John F. Bullwinkel, for the executors respondents. William D. Feeder, for Henrietta Ficken. George F. Martens, for John H. Tienken.
   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 the 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 21 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 N. Y. 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 Goebel v. Wolf, 113 N. Y. 405, 21 N. E. Rep. 388. 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 proceedings remitted to the surrogate for further action. All concur.  