
    William C. Flanagan, as Sole Acting Executor and Trustee under the Last Will and Testament of Joseph Staples, Deceased, Respondent, v. Deborah Staples and Others, Defendants; Julius T. Staples and Josephine A. Esler, Appellants.
    
      A remainder — when it is defeasible by death before the death of the life tenant.
    
    A testator by his will provided as follows: “ Upon the death, of my said wife, I . give, bequeath and devise all my said estate and property unto my children in equal shares or portions, share and share alike absolutely and forever. In the event of the death of any of my children leaving issue him or her surviving, such issue shall take the share or portion o£ my said estate and property which the parent would have taken if living.”
    
      Held, that the share which a child of the testator, who died before the widow, would have taken, had he survived the widow, was not devisable by him, but passed, upon his death, before the widow, to his children by virtue of the provisions of such will.
    Appeal by the defendants, Julius T. Staples and another, from so much of an interlocutory judgment or decree of the Supreme Court, entered in the office of the clerk of the county of New York on the 23d day of June,. 1897, upon the decision of the court rendered after a trial at .the New York Special Term, as adjudges and declares that Joseph Staples, Jr.-, did not take an, absolute vested one-fourtli interest- in the estate of his father, Joseph Staples,: deceased-, which he could dispose of, by his will, to his brother and sister, the defendants Julius- T. Staples and Josephine A. Esler, but that his children, the defendants Harry K. Staples, Herbert. Staples, Joseph Staples and Leslie C. Staples are entitled to the same, to be equally divided between them.
    
      Charles A. Runk, for the appellants.
    
      M. S. Thompson, for the respondent.
   McLaughlin, J.:

Joseph. Staples died in 1888, leaving him surviving his widow .Deborah and four children, two sons, Joseph and Julius T.,. and two daughters, Josephine A. Esler and Emma M. Flanagan. He left a will and a' codicil thereto which, shortly after his death, were admitted to probate, and letters testamentary thereon issued. to the plaintiff, one of the executors therein named. The, subject-matter of this controversy relates to the construction to be given to a portion of the 4th clause, and which was not changed or -modified by the codicil. So much of this clause of the will as is material to the question presented, reads as follows : Upon the death of my said wife, I ,give, bequeath and devise all my said estate and' property unto my children in equal-shares or portions share and share alike absolutely and forever. In the event of the death of any of my children, leaving issue him or her surviving, such issue shall take the share- or portion of my said -estate and property which the parent would have taken if living.”

The son Joseph died in 1892, leaving him surviving four infant children. He also left a will in and by which he gave to- his sister Mrs. Esler and to his brother Julius the share or portion of his father’s.estate which he was entitled to take and receive under his father’s will. The widow Deborah died in. 189.6-. The sole question presented for our determination is whether the interest which Joseph would have taken in his father’s estate, had he been living at the time of Deborah’s death, nojv belongs to the. four infant children : under the will of their grandfather, or whether that interest passed Under the will of the son Joseph and now belongs to his brother Julius and his sister Mrs. Esler. The answer to this question, depends entirely upon whether this interest so far vested in Joseph, that he. could effectually dispose of it by will, and this must be ascertained, if it can be, by what the testator intended in that respect. Turning then to the will it will be found that the intent of the testator is perfectly clear on that subject and expressed in such a way that it cannot be misunderstood. The testator desired that his widow Deborah should have the use of his property during her life, and that at her death whatever remained, should be equally-divided among his four children, and if any of them should, prior to that time, die leaving issue, such issue was to be substituted in the place of the parent. The words selected to express this desire are upon the death of my said wife I give * ’* * . all my said estate and property unto my children in equal shares * * *. In the event of the death of -any of my children leaving issue * * * ■ such issue shall take the share or portion * * * . which the parent would have taken if living.”

The son Joseph immediately úpon the death of his father took a vested remainder in his father’s estate, the enjoyment of which, however, was postponed until the death of the life tenant and depended upon his surviving her; in other words,-he took an estate which immediately upon the death of the testator vested, but which by express provisions of the will was subject to be divested by the happening of a specified contingency, which was his death before the death of the life tenant. The contingency thus provided for occurred. The son Joseph died before the widow Deborah; he left . issue him surviving, and such issue, immediately upon the death of the widow Deborah, was substituted in and took the place of Joseph under the will of the testator. (Camp v. Cronkright, 59 Hun, 488.) The trial court, therefore, was right in holding that the interest which he would have taken in his father’s estate, had he survived his mother Deborah, is now lodged in and belongs to his four infant children.

The judgment should be affirmed, with costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.

Patterson, J.

I concur in. the conclusion that this judgment should be affirmed. The appeal involves the interpretation of the 4th clause as amended by a codicil of- the will of Joseph Staples, Sr., and the point in dispute isj whether his -son Joseph Staples, Jr., took such an interest in a share of the residuary estate passing under the father’s will as enabled him to dispose of that share absolutely by-his own will and testament.. The general scheme of the father’s will, omitting reference to gifts of specific legacies, is a trust of the residuary estate in executors to pay income to the testator’s widow during her life, with a power to resort to the principal in case-of need for her'support, and upon her death the whole residue to go to the testator’s children in equal shares absolutely and forever.” The provision is then made, in the event of the death of any of my children leaving issue him or her surviving such issue shall take the share or portion of my said estate and property which the parent would have taken if living.” The codicil will be considered hereafter.

It is quite apparent that, under the terms of this will, the children of the testator took vested remainders. They were all living when he died and, upon the determination of the particular estate limited on the life of the widow,, would have been entitled to -possession-. There was nothing contingent in their right. They had the present capacity to take, .for, when the 'will became operative,, neither the persons upon whom nor the -event upon which the i-emainders weré to fall into possession was left uncertain. The interposition of trust term did not affect the vesting in interest. (Matter of .Tompkins' Estate; Verplanch v. Tompkins, 154 N. Y. 634.) But,, although a remainder may- be vested in interest, it may also be' divested by the happening of some event contemplated and provided for by the testator and a substituted gift, of the remainder take- effect in its place. The ordinary illustration of such a case is, where the remainder is given-to one in fee, but in the; event of his death without issue, .then over to a different person. • Here the gift is of a share to the_ son subject to passing over to that son’s issue, in the event of such son dying. When ? During the lifetime of- his father*, or during the continuance of the particular estate % - If the former, then the remainder vested absolutely and indefensibly and passed under the will of the son; if the latter, the children of the son took by substitution and as purchasers under the will of their grandfather.

In the recent case of Becker v. Becker (22 App. Div. 234) Hr. Justice Herbiok has collated and commented upon the leading decisions of the Court of Appeals relating to limitations by will of estates upon a death either before or after that of a testator, and it is unnecessary to go over that subject again. ■ The determinant consideration is what was the intention of the testator. In this case the learned justice at Special Term held that the words “the death of any of my children,” as used by the testator, referred to death during the lifetime of the widow, and that interpretation was authorized. The testator fixed a time or period to which the death of any of his children was referable. The words as used must be read in connection with the codicil as well as with. the original 4th clause. In that codicil there is a specific legacy given to a daughter payable, after the death of the widow, out of the estate then in the hands of the trustees, and it is provided, “ upon the death of my said wife I give and bequeath” the specific legacy. “All the rest, residue and remainder of my estate and property I give, bequeath and devise unto all my children, including said Josephine A. Esler to le divided share and share alike,” etc., and in all other respects his will, including the substituted gifts, is ratified and confirmed. Reading the 4th clause as thus modified, and still retaining the provision as to his children dying, it appears that he intended to refer to the death of his children during his wife’s life and not during his own. The direction to divide mentioned in the codicil did not postpone the vesting in interest (Manice v. Manice, 43 N. Y„ 303), but the remainder in Joseph Staples, Jr., was divested by his death during the lifetime of his mother, as in Gamp v. Gronkright (59 Hun, 488). I, therefore, concur in the affirmance of the judgment.

O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  