
    Matter of the Estate of Ambrose Spitzmiller.
    
      (Surrogate’s Court, Erie County,
    
    
      July, 1916.)
    Trusts—When fund vested—Direction, to executors—Life tenants— Widows—Legatees.
    Testator was survived by a widow, four children and a daughter-in-law all provided for by the will; the widow was left a life estate in practically the entire property of testator reserving to the daughter-in-law thirty dollars a month and a provision for the maintenance of the wife and children from the income of the realty for and during the lifetime of the widow and upon her decease the executors were directed to deposit iA savings bank or invest a certain sum during the life of the daughter-in-law and pay her the interest and income and upon her decease the fund to be divided equally among testator’s daughter and his three sons' share and share alike. Held, that said trust fund vested in testator’s four children at the time of his death and that the widow and sole legatee, of one of them who predeceased the life tenant took her husband’s share.
    Application on behalf of executors for construction of a will.
    Strebel, Corey, Tubbs & Beals, for executors.
    Rebadow, Ladd & Brown, for respondent,. Julia Spitzmiller Hughes.
   Hart, S.—

The estate of Ambrose Spitzmiller having been administered and now ready for final distribution, the executors have asked for a construction of the will of the testator whereby a trust created for his daughter-in-law, Carrie Spitz-miller, now terminated, shall be treated; as contingent rather than a vested remainder.

The testator, at the time of his decease, was survived by a widow, four children, and a daughter-in-law, who are all provided for under the terms of the will. The widow was left a life estate in practically the entire property reserving to the? daughter-in-law thirty dollars per month and a provision for maintenance of wife and children from the income of the realty for and during the lifetime of the widow. The 5th clause of the will contains the following provisions-: “ Upon the decease of my said wife I direct my remaining executors and executrix to deposit in Savings Bank, or invest in -such securities as Savings Banks in Buffalo are entitled to invest in, the sum of ten thousand dollars, and to keep the same so-safely invested for and during the term of the natural life of my daughter-in-law, Carrie Spitzmiller, and to pay the interest and income derived from such deposit or investments to said Carrie Spitz-miller for and during the term of her natural life, monthly or quarterly as the receipt of income may warrant; and I do hereby give and bequeath to said Carrie Spitzmiller the income from said sum of ten thousand dollars so to be deposited or invested for and during the term of her natural life. * * *

“ All of the rest of my personal property and estate remaining at the time of the decease of my wife, other than the bank stock as aforesaid, I give and bequeath to my daughter Cora Laub, „ and to my sons Louis Spitzmiller, William Spitzmiller and Charles Spitzmiller, to be divided between them equally share and share alike; and upon the decease of my daughter-in-law, Carrie Spitzmiller, the sum of ten thousand dollars shall likewise be divided equally between my daughter Cora Laub and my sons Louis Spitzmiller, William Spitzmiller and Charles Spitzmiller, share and share alike.”

Upon the death of the widow the estate' was divided among the four children excepting the trust fund of $10,000, and the necessity for construction arises because of the fact that one of the remaindermen, Louis Spitzmiller, predeceased the life tenant nearly eleven years, left a will bequeathing his property to his widow, who has since remarried and is now known as Julia Spitzmiller Hughes; the executors contending that the trust fund should be divided among the three surviving Spitzmiller children; Mrs. Hughes asking for the share bequeathed to her deceased husband.

The argument made in behalf of the executors is alluring as applied to what the testator might have done had he been able to contemplate the eventual distribution of the trust, fund, emphasizing the natural desire to confine the distribution of an estate of this character to those of his own blood. If this were the testato-Ps intention, it is unfortunate that he did not make reference to his “ surviving ” children, or to those “ then living.” The law in the case of legacies as in the case of devises prefers “ Whenever testator’s language is ambiguous, obscure or doubtful, a construction which will make a legacy vested rater than contingent, or, if contingent, will make it vested as soon as possible.”

The counsel for executors have quoted certain well established rules of construction, and cited- cases, in particular Salter v. Drowne (205 N. Y. 204), Matter of Baer (147 id. 348), supporting the doctrine where “ ‘ futurity is annexed to the subject of the gift ’ the devise * * * is * * * contingent.”

Another rule is sought to be invoked by counsel for the respondent : “ When the testator postpones the payment of a legacy simply for the purpose of creating an intermediate interest in some other person upon the determination of which interest the legacy is to be paid, such legacies are prima facie treated as vested upon the testator’s death and not contingent.” (Page Wills, 783; Underhill Wills, 1304; Matter of Crane, 164 N. Y. 71; Goebel v. Wolf, 113 id. 405 ; Matter of Gardner, 140 id. 122; Matter of Morris, 9 App. Div. 602, affd., 154 N. Y. 778.)

It is not within my province or jurisdiction to determine what the testator might have done, but to interpret the intention of the testator as expressed in his last will. There is no specific mention nor use of the word “ vesting.” There is- no contingency or restriction in the bequest to the four children after the determination of the life estate to Carrie Spitzmiller.

I am of the opinion that all general rules give way to the dominant and supreme rule that each will is to be construed by itself and depends for its meaning largely upon its own context and subject matter.” The precise words in question are not the same as used in any of the cases cited. Giving due consideration to the rules and cases cited in support thereof, I, therefore, find- that theit trust fund created by the testator for Carrie Spitzmiller vested in his four children at the time of his death.

Decreed accordingly.  