
    The New York Trust Company, as Substituted Trustee under the Trust Created by the Will of Helen Maria Wyman, Deceased, Respondent, v. Cornelia Colton Thomas and Lucy Phillips, Respondents, Impleaded with Thomas Hay Thomas and Others, Appellants, and Others, Defendants.
    First Department,
    February 17, 1911.
    Will construed—when remaindermen to be ascertained at termination of trust.
    Where a will placed property in trust for the lives of G-. and T. and at the death of both of them bequeathed the property “ as the same may then be, to the children of my said sister * * * T., her then surviving, share and share alike,” only the children of T. living at her death are entitled to take; the issue of a child who, though living at the death of the testatrix, died before T. are excluded.
    
      ■ Appeal by the defendants, Thomas Hay Thomas and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in ,the office of the clerk of the county of New York on the 28th day of June, 1910, ' upon the decision of the court rendered after a trial at the New York Special Term.
    
      Charles G. Wheeler, for the appellant Eugenia H. Thomas.
    
      Elmer G. Sammis, guardian ad litem, for the appellants Thomas Hay Thomas and John Dover Thomas, 3d.
    
      Ralph Polk Buell of counsel [Graham & L'Amoreaux, attorneys], for the defendants, respondents.
    
      John C. Thomson, for the plaintiff, respondent.
   Clarke, J.:

Appeal from an interlocutory judgment construing a will and ■ directing an accounting entered upon a decision of the Special Term in an action brought by the substituted trustee under the trust created by the will of Helen Mafia Wyman for its construction.

Mrs. Wyman made a will executed July 8, 1861, in which she gave and bequeathed to her husband one-third part in value of her whole estate and “ all the remaining two-thirds of my estate I give and bequeath to my executor hereinafter named [her husband] in trust however for the purposes and intents hereinafter set forth, to be held and possessed by him for and during the natural life of. my mother Mary Ross Colton * * * and for and during the natural life of my sister Mary Rowena Thomas. * * *” Under the terms of the trust the net income was to be annually paid to Mrs. Colton during her life and thereafter to testatrix’s sister, Mrs. Thomas, for and during the term of her natural life. The will further provided : Erom and after the decease of my mother, Mary Ross Colton, and Mary Rowena Thomas as aforesaid and the decease of each of them, I give and bequeath the said remaining two-thirds of my estate as the same may then be, to the children of my said sister Mary Rowena Thomas, her then surviving, share and share alike.”

. Mrs. Wyman died August 19, 1861, and her husband was duly appointed executor. He subsequently died and plaintiff was appointed substituted trustee, Mrs. Colton, the mother, died February 2, 1872, and Mrs. Thomas, the second beneficiary for life, died February 10, 1909. At the time of the death of the testatrix the following children of her sister Mary Bowena Thomas were in being: Cornelia Colton Thomas, a defendant herein; Lucy Phillips, a defendant herein; John Dover Thomas, the father of the infant defendants Thomas Hay Thomas and John Dover Thomas, 3d; Bowena Thomas and Mary Burton.

The following children of Mary Bowena Thomas predeceased their mother: Bowena Thomas, who died February 12, 1862, an infant aged four years; Mary Burton, who died in July, 1893, leaving no children and no will; John Dover Thomas, 2d, who died January 17, 1898, leaving two children, Thomas Hay Thomas and John Dover Thomas, 3d, who are infants.of the age of nineteen and seventeen respectively. The defendant Eugenia II. Thomas is the widow and administratrix of John Dover Thomas, 2d.

The Special Term decided that the defendants Cornelia Colton Thomas and Lucy Phillips, being the only children of Mary Bowena Thomas surviving on the lObh of February, 1909, the date of the death of the said Mary Bowena Thomas, were the only persons entitled under the terms of the will to participate in the distribution of the principal or capital of the said trust funds and property. This estate consists entirely of pei’sonal property. The administratrix of John Dover Thomas, 2d, and.the special guardian of his two children appeal, the claim being that, the estate vested upon the death of the testatrix and that as John Dover Thomas, 2d, was then living he became vested in a share of the estate which descended to his children. The administratrix claims in his right as the estate was entirely personal, and the children claim as his heirs and next of kin.

In all will cases the intent of the testatrix must be ascertained from the language of the will itself if possible. General rules are of little or no help. It is true that the general, rule favors the vesting of estates. Courts have sometimes seemed to strain to prevent non-vesting. It is also true that the word children ” sometimes includes grandchildren; that words of time, before,” then,” “ at,” “ after,” are variously construed in attempting to ascertain the real meaning of the testator. It is accepted doctrine, however, that each will must be construed by itself, and that as no two are precisely alike, previous decisions are not as controlling as in other titles of the law. But there is no room for construction when the meaning is plain. The words in controversy are: From and after the decease of my mother, Mary Boss Colton, and Mary Bowena Thomas * * * I give and bequeath the said.remaining two-thirds óf my estate as the same -may then be, to the children of my said sister Mary. Bowena Thomas, her then surviving, share and share alike.” There were at the death of the last life tenant children of Mary Bowena Thomas her then surviving. Testatrix, immediately before the words “ her then surviving,” made use of the jdirase in describing the estate bequeathed, as the same may then be,” indicating that she had clearly in mind the condition of affairs, both financial and family, which should exist at the termination of the life tenancy. If she had said, to the children of my said sister,” a different construction would have been’required, and the language would have been construed as relating to the death of the testatrix. Bnt it seems to me that with precision she has prevented such construction and indicated that it was her sister’s children surviving at the death of Mrs. Thomas whom she had in mind.

In Robinson v. Martin (138 App. Div. 310 ; affd., 200 N. Y. 159) this court and the Court of Appeals interpreted the words there used, “Upon the death of my said son, I give, devise and bequeath the said share to my unmarried daughters in equal shares,” as applying to the condition existing at the cessation of the life estate, and decided that the bequest was. to the daughters who were then unmarried, excluding three other daughters who had been married prior to the falling in of the life estate. The words so construed are not as clear as in the will at bar, which divides the estate “ as the same may then be ” to “ the. • children * * * her then surviving.”

The judgment should, be affirmed, with costs and disbursements to the respondents.

Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred. -

Judgment affirmed, with costs.  