
    In the Matter of the Compulsory Account of Mary Maley, as Executrix of and Trustee under the Last Will and Testament of Jane Brennan, Deceased.
    (Surrogate’s Court, New York County,
    July, 1911.)
    Wills—Interpretation and construction: Hature and quality of estates — Future interests and vesting, possession and enjoyment — Conditions subsequent with gifts over: Conditions, contingencies and alternatives — Rules and implications — Death of person—To what time referred.
    Where a testatrix directed her executrix to deposit $1,000 in bank for the benefit of J. and to pay said sum with all interest thereon over to him when he should attain the age of twenty-one years, and in case of his death before said period to pay said sum and interest to his mother, K., the language is not to be construed as importing an intention that the gift over should only be effective in case of the death of J. during the lifetime of the testatrix and that in case J. should survive the testatrix he should take said sum absolutely, payment thereof to him only being deferred until he attained the specified age.
    Under such provision the legacy vested in interest in J. upon the death of the testatrix, subject to be divested by his death before reaching the age of twenty-one years and was so divested by that event; and, the gift over to K. having lapsed because of her death within the lifetime of the testatrix, the legacy fell into the residuary estate and was rightfully distributed to the residuary legatees.
    Proceeding to compel an accounting by an executrix and trustee.
    Isaac B. Reinhardt, for petitioner.
    Paul Halpin, for executrix.
   Fowler, S.

The will of the testatrix, who was a widow without children or other descendants, contains the following direction to her executrix:

“ 4. To deposit the sum of one thousand ($1,000) dollars in the Bowery Savings Bank in the City of Few York, or other safe savings Bank therein, for the benefit of Joseph Richard Hebblethwaite, son of Kate Hebblethwaite of Ho. 309 West 144th street, Oity of Hew York, and to pay said sum, with all interest thereon, over to Joseph Richard Hebblethwaite when he shall attain the age of twenty-one years; in case of his death before such period to pay said sum and interest to his said mother, Kate Hebblethwaite.”

The will was executed in. 1884, and the testatrix died in 1899. Kate Hebblethwaite had predeceased her, dying in 1896, to. the testratrix’s knowledge. Joseph Richard Hebblethwaite survived both his mother and the testatrix, but died in 1908 at the age of about nineteen years. At the time of his death the above mentioned legacy of $1,000, with accumulations of interest, was on deposit in the Emigrants’ Industrial Savings Bank in the city of Hew York in an account standing in the name of the executrix as trustee for Joseph Richard Hebblethwaite. Thereafter the executrix, proceeding upon the assumption that the legacy had failed, distributed the fund under the residuary clause of the will to the children of Eanny Maley, a deceased sister of the testatrix, the fund then amounting, with accrued interest, to the sum of $1,216.26. These facts inter alia appear from the petition and answer filed upon this application, which is made by the father of Joseph Richard Hebblethwaite to compel the respondent as executrix and trustee tó account for and pay over the fund to him, he petitioning individually and also as general guardian of his surviving children and administrator of his deceased wife, Kate Hebblethwaite. Since the filing of. the petition the petitioner has máde himself a party to the proceeding in the additional capacity of administrator of his deceased son, Joseph Richard Hebblethwaite, and the persons who upon the death of the latter participated in the distribution of the fund have been brought in by supplemental citation. The answer of the respondent has been treated as her account in accordance with the directions of the surrogate, and "objections thereto have been filed by the petitioner.

The testimony taken upon the hearing was directed to showing that when Kate Hebblethwaite was about four years old she was to some extent adopted by the testatrix and her husband as their child, and it sufficiently establishes that she was taken into the house by old Mr. and Mrs. Brennan and, treated as one of their family prior to 1873, the year in which the first general statute was enacted authorizing adoptions. The evidence given in does not show any formal adoption, or even affiliation of Kate Hebblethwaite by Mr. and Mrs. Brennan. It- is not now contended in the brief filed on behalf of the petitioner that such adoption created any rights of inheritance or brought the legacy within the protection of section 29 of the Decedent Estate Law, which prevents the lapsing of legacies in certain cases. Ho such contention could be maintained. Carroll v. Collins, 6 App. Div. 106; Matter of Thorne, 155 N. Y. 140; Smith v. Allen, 161 id. 478.

In the position now taken by the petitioner no rights are traced through Kate Hebblethwaite. It is contended, in respect to'the gift over to her of the legacy which was primarily given to Joseph Kichard when he should attain the age of twenty-one years, that such gift over, though limited by the words of the will to take effect in case of his death before that period,” was not intended by the testatrix to have any effect unless Joseph Kichard died before that period and during the lifetime of his mother. This somewhat artificial construction is not warranted by any authority that the industry of counsel has brought to light. Support for it is sought in considerations drawn from the presumed intentions of the testatrix as indicated in other dispositions which she made of her property by her will", particular" reference being made to the 6th paragraph of the will, in which a legacy of $700 bequeathed to Kate Hebblethwaite is directed to be paid to her surviving children in case of her death before payment; and it is argued therefrom that it was not the intention of the testatrix that any part of her bounty to the Hebblethwaites should be diverted from them to others. The difficulty in the present case seems to me to have arisen from the failure of the testatrix to provide in her will for a contingency which has happened. The court may not speculate as to the direction in which she would have sent this legacy had she contemplated its happening, though it may not be improper to observé that there is nothing in the will to indicate that she would have sent this fund to the -petitioner, who will take the whole of it in his own right if his contention be sustained. Decedent Estate Law, § 98, subd. 7.

My view of the matter is that the legacy vested in interest in Joseph Richard Hebblethwaite upon the death of the testatrix, but that it was subject to be divested by his death before reaching the age of twenty-one years, and was so divested (Matter of Lehman, 2 App. Div. 531; Matter of Dippel, 71 id. 598); that the gift over to Kate Hebblethwaite lapsed because of her death within the lifetime of the testatrix, and that by reason of such lapse the legacy fell into the residuary estate on the death of Joseph Richard Hebblethwaite before the age of twenty-one, and was rightfully distributed to the residuary legatees under the general rule of law governing lapsed legacies. The objections should, therefore, be overruled.

Decreed accordingly.  