
    Albert Delafield et al., Individually and as Trustees, Respt’s, v. Richard Delafield, Imp’d, Etc., App’lt.
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    1. Wills—Construction of—Direction to trustees to pat at future time —Property does not vest in beneficiary until division.
    Where by the terms of a will ".here is no gift, but a direction to the executors or trustees to pay, or to divide and pay at a future time, the vesting will not take place until that time arrives.
    2. Same—Where a will directs a division of income the distributees TAKE NOT AS JOINT TENANTS BUT AS CO-TENANTS.
    Where the trustees were directed to make certain dispositions of the annual income, and after these either semi-annually or quarterly to make a dividend of the residue of the income equally between the wife and children of the testator. Held, that it was tlu intention of the testator that his wife and children should take the surplus income, not as a class, not as joint tenants, but distributively as tenants in common.
    8. Same—Death of distributee—In case of, who takes.
    
      Held, that upon the death of one of the distributees, the share of income which was payable to her during her life did not pass to those surviving, but was undisposed of by the terms of the will, and was devolved upon the appellant under the 1 R. S., 721, § 40. “ When in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation, or of the ownership, during the continuance of which the_ rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate,"
    Appeal from a judgment of the general term of the supreme court, first department, affirming a judgment of the special term in favor of plaintiffs.
    This action was brought for the construction of the will of Bichard Delafield, deceased. The will was dated January 17, 1873, and the testator died on the 5th day of November following, leaving a widow then aged seventy-two years, and six children, five daughters and one son, all "unmarried adults and members of his family.
    After several devises and bequests the will contained the following clauses: “All the rest, residue and remainder of my estate, of every description and wheresoever situated, I give, devise and bequeath to my executors and trustees hereinafter named, in trust to apply and manage the same for the benefit, support and comfort of my wife and children in the manner following, to wit: in the first place to provide, during the life of my wife, a furnished house as a home for my wife and children, and out of the income of my estate to provide for the expense of keeping said house, so as to enable my said family to live in the manner they have been accustomed to; said house and the keeping of the same to be under the control and direction of my wife as the head o~ the establishment; secondly, to keep the house and furniture in good repair, and from time to time to renew the worn out furniture; thirdly, to pay all taxes and assessments on my property; and, fourthly, either semiannually or quarterly to make a dividend of the residue of the income, after satisfying the objects hereinafter provided for, equally between my wife and my six children . aforesaid, so as to give each of my said children and my wife an equal_share of the whole; and each one is to defray out of his or her share of said income his or her personal expenses, such as for wearing apparel, traveling, etc.
    
      Items Upon the death of my wife I direct that my executors and trustees shall make an equal division of my whole estate not herein specifically otherwise disposed of,, among and between my children then living, and the descendants of any deceased child (who may have married and died leaving issue), so that such descendants of any deceased child will receive the same share which their parent would have received if living.”
    He appointed his wife, son and. daughter, Susan, executors and trustees under the will, and they entered upon the discharge of the trusts.
    The trust estate yielded an annual income of $21,000, and of this $7,000 was required to defray the expenses of maintaining the family home as provided in the will, leaving a surplus of $14,000 to be annually divided between the widow and six children.
    The widow is still living. After the death of the testator one of the daughters married Edgar J. Shipman and subsequently died, leaving an infant child, the appellant, and a will in which she gave all her property to her husband for life, and after his death to her children.
    Mr. Shipman claimed that after the death of his wife one-seventh of the surplus income was payable to him under her will, and it was claimed on behalf of the appellant that, the one-seventh was payable to him. The trustees claim o that such income was payable to the widow and six children as a class, and that upon the death of Mrs. Shipman it became payable to the six survivors, and that the corpus of the estate vested in the trustees during the life of the' widow and did not vest in the children until after her death; and so it was held in the court below. Mr. Ship-man did not appeal to this court.
    
      William C. Beecher, for app’lt; Charles M. DaCosta, for resp’ts.
   Earl, J.

We agree with the court below, and with the contention of the respondents, that the corpus of the residuary estate did not, during the life of the widow, vest in the testator’s children, and for this conclusion the cases of Warner v. Durant (76 N. Y., 133), Smith v. Edwards (88 N. Y., 92), and Shipman v. Rollins (98 N. Y , 311), are ample authority. The whole income is not given to the children during the life of the widow, and during her life the estate is vested in the trustees. There is no direct gift to the children, but simply a direction for a division among them after the death of the widow. In Warner v. Durant Folger, J., said : “ Where there is no gift, but a direction to executors or trustees to pay, or to divide and to pay, at a future time, the vesting will not take place until that time arrives.” In Smith v. Edwards, Finch, J., said, that “ it has been often held that if futurity is annexed to the substance of the gift, the vesting is suspended,” and that “when the only gift is in the direction to'pay or distribute at a future time, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is the essence of- the gift.” These general rules must control the construction of this will, as there is nothing in its context or general language which renders them inapplicable. This construction, too, is in harmony with the presumed intention of the testator. He vested the whole estate in the trustees during the life of his widow, and during that time evidently intended that it should remain there, and not be subject to the disposal of his children, or hable to be seized by their creditors ; and after the death of his widow he gave it, not to the children living at his death, but to the children and descendants of children deceased living a,t her death.

It is clear that the testator intended that his wife and chicken should take the surplus income, not as a class, not as joint tenants, but distributively as tenants in common. Such is the plain language of the will. The trustees were to divide the surplus “ equally between ” his wife and six children so as give each “an equal share,” and “eachone” was “ to defray out of his or her share ” his or her personal expenses. Such language is always held to constitute the beneficiaries tenants in common, and to show that they take distributively unless there is something in other provisions of the will to show that the testator intended that they should take as a class, and so it was held in Hoppock v. Tucker (59 N. Y., 202). Here there is nothing in the will to control, modify or limit the plain meaning of this language. The testator’s wife was old, and it appears that he contemplated that one or more of his children might during her life marry, die, and leave descendants. He made no provision for the support of such descendants in the family home, and it cannot be supposed that he intended they should during the life of his widow be left without any means of support. He put such descendants in the place of their deceased parents after the death of his widow, and it is fair to infer that he expected that they would in some way take the place of their parents during her life. A construction giving such effect to the will will certainly come, nearest to the presumed intention of the testator.

Therefore, when Mrs. Shipman died, the one-seventh of the income which was payable to her during her life did not pass to the surviving six, but was undisposed of by the terms of the will, and was devolved upon the appellant under the Revised Statutes (1 R. S., 726, § 40), which provides as follows : “When, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate. ” This case precisely fits that section. There is a valid limitation of an expectant estate to the appellant. During the lifetime of the widow there is a suspension by a valid trust of the power of alienation, and since the death of Mrs. Ship-man the income is undisposed of by the will, and the appellant is the person presumptively entitled to the next eventual estate, and, therefore, entitled to the income otherwise undisposed of.

The judgments of the general and special terms should, therefore, be reversed, and judgment entered in accordance with this opinion, the costs of all parties in the supreme court and in this court to be paid by the trustees out of the surplus income of the trust estate.

All concur. 
      
       Reversing 34 Hun, 514.
     