
    Frank P. Cooper, as Trustee under the Last Will and Testament of James M. Heatherton, Deceased, Appellant and Respondent, v. James M. Heatherton, Individually and as Trustee under the Last Will and Testament of James M. Heatherton, Deceased, Respondent and Appellant; May J. Heatherton and Others, Infants, Appellants and Respondents; Alice M. M. Cooper, as Testamentary Guardian of May J. Heatherton and Others, Infants; and Irene B. Ebling (Formerly Heatherton), Respondents.
    
      Will—“youngest child" held to mean child en ventre sa mere — a codicil giving one-third of a newspaper to a son who by the will was given an estate in remainder in one-half thereof.\ held not to increase beyond one-half his ultimate interest.
    
    A testator in the 6th clause of his will bequeathed a trade journal owned by him to his executors in trust to continue to publish the same, and to pay out of the profits thereof a weekly sum for the support of his wife and minor children. It also provided: “(6) The money that is now in bank in my name I consider as a part of my paper, and the disposition hereinbefore and hereinafter made is in reference to my said paper and the money in bank, which money is to be for the use of said paper. (7) I desire that my said executor and executrix shall keep as much money from the profits of said paper as a sinking fund for said paper as practicable, my intention being that it should be enlarged and also in time of any reverses there will be sufficient money to carry said paper, said money or profits to be deposited in savings bank or trust companies or both.”
    The 7th clause provided: “In case of the remarriage of my said wife or at her death said paper (which will also include the money in bank or trust companies) is still to continue to run as aforesaid until my youngest child shall attain the age of 21 years, and th'n I bequeath one-half of my said paper, which will include one-half of all money in bank or trust companies to my son James M. Heatherton, Jr., and the other half of said paper, which will include the other half of all moneys in bank or in trust companies to the rest of my children in equal shares.”
    After executing the will the testator made a codicil providing: “I hereby ratify and confirm said Will in every respect save so far as any part of it is inconsistent with this codicil. I give and bequeath unto my beloved son, James M. Heatherton, Jr., a one equal third part or interest in and to the Plumbers’ Trade Journal mentioned in the foregoing Will, such interest to commence at my decease, and I direct that the said Plumbers’ Trade Journal shall be continued under the management of said son James M. Heatherton, Jr.”
    
      
      Held, that as there was nothing to show that the testator when using the term. “ youngest child” had in view any particular child, but simply intended that the division should be postponed until all of his children became of age, the term "youngest child” would be construed to mean a posthumous child of the testator, and not the youngest child born and living at the time of his death; That a child en ventre sa mere is regarded as a life in being within the meaning of the statute against perpetuities;
    That the effect of the codicil was to take one-third of the journal out of the trust and to continue the trust as to the other two-thirds of the paper and as to two-thirds of the money in the bank and in the trust company without disturbing the proportion in which the journal and the money were to be ultimately divided, that is, that the testator’s son, James, was, in addition to the one-third of the paper given to him absolutely, to have so much of the property at the termination of the trust as would afford him one-half of the paper and one-half of the money, namely, one-sixth of the money and one-sixth of the paper.
    Cross-appeals by the plaintifE, Frank P. Cooper, as trustee under the last will and testament of James M. Heatherton, deceased, and by the defendants, James JVI. Heatherton and others, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 28th day of June, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.
    The will of James M. Heatherton, Sr., provided as follows :
    “ First. I direct all my just debts and funeral expenses be paid.
    
      “ Second. I direct my executors hereinafter named to pay to my brother Edward J. Heatherton the amount appearing on the stock books as his subscriptions and that of my brother Matthew M. Heatherton, now deceased, to the Plumbers’ Trade Journal as it was then called.
    “ Fourth. I give and bequeath to my beloved wife, May J. Heatherton, all my household furniture, my certificate of insurance in the order of Tonti and the American Legion of Honor, in lieu of her dower in all my property.
    “ Fifth. I hereby appoint my beloved wife, May J. Heatherton, and my beloved son James M. Heatherton, Jr., and my friend Benjamin C. Smith, the executrix and executors of this my last will, hereby revoking all former wills by me made, i “ Sixth. It is • my will that my paper, the Plumbers’ Trade Journal, Gas, Steam and Hot Water Fitters’ Review, shall remain in my family, and to that end I hereby bequeath the same to my executrix and executors, or such of them as shall qualify, in trust nevertheless for the following purposes, and to be conducted in the following manner, to wit: (1) My said son James M. Heatherton, Jr., shall be and remain managing editor. (2) Out of the proceeds of the said paper my said wife shall receive the sum of fifty dollars per week, if the business warrants it, for the support of my said wife and my minor children as long as she remains my widow, and in case she remarries or at her death, said sum or so much thereof as shall be necessary, shall be applied to the support and and education of my said children. (3) My said son James M. Heatherton, Jr., shall receive as his compensation the sum of thirty ($30.00) dollars per week, unless the business increases so much that it will warrant the payment of a greater salary; in such event the said executrix and executors are to fix and pay him such salary as his services are reasonably worth. (4) My said brother Edward J. Heatherton is to be employed on said paper as long as his services are useful to it. (5) In case the business of said paper will warrant and my said wife needs more than fifty ($50.00) dollars per week for her and her children’s support, then my said executors are to give her such increase. (6) The money that is now in bank in my name I consider as a part of my paper, and the disposition hereinbefore and hereinafter made is in reference to my said paper and the money in bank, which money is to be for the use of said paper. (7) I desire that my said executor  and executrix shall keep as much money from the profits of said paper as a sinking fund for said paper as practicable, my intention being that it should be enlarged and also in time of any reverses there will be sufficient money to carry said paper, said money or profits to be deposited in savings bank or trust companies or both.
    
      “ Seventh. In case of the remarriage of my said wife or at her death, said paper (which will also include the money in bank or trust companies) is still to continue to run as aforesaid, until my youngest child shall attain the age of 21 years, and then I bequeath one-half of my said paper which will include one-lialf of all money in bank or trust companies to my son James M. Heatherton, Jr., and the other half of said paper which will include the other half of all moneys in bank or in trust companies to the rest of my children in equal shares.
    
      “Eighth. I hereby appoint my said wife the testamentary guardian of my minor children, and in case of her death before they all become of age, then I appoint my friend Benjamin C. Smith such testamentary guardian during -their minority.”
    The material parts of the codicil to the will provide as follows:
    “ I hereby ratify and confirm said Will in every respect save so far as any part of it is inconsistent with this codicil.
    “ I give and bequeath unto my beloved son, James M. Heatherton, Jr., a one equal third part or interest in and to the Plumbers’ Trade Journal mentioned in the foregoing Will, such interest to commence at my decease, and I direct that the said Plumbers’ Trade Joxirnal shall be continued under the management of said son James M. Heatherton, Jr.”
    
      William D. Hiper, Jolvn T. Ganmarn, and Charles S. Warbasse [Henry E. Wilke with them on the brief], for the appellants, respondents.
    
      Henry H. Pierce [ William C. Prime with him on the brief], for the respondent, appellant.
    
      
      Sic.
    
   Jenks, J.:

The 7th paragraph of the will reads as follows: “ In case of the remarriage of my said wife or at her death said paper (which will also include the money in bank or trust companies) is still to continue to run as aforesaid until my youngest child shall attain the age of 21 years, and then I bequeath one-half of my said paper, which will include one-half of all money in bank or trust companies to my son James M. Heatherton, Jr., and the other half of said paper, which will include the other half of all moneys in bank or in trpst companies to the rest of my children in equal shares.”

The testator died on March 18, 1895, leaving a widow and eight children-, who had been born prior to the making of his will. After the death of the testator a child, Alice, was born alive on October 10, 1895, and lived until September 24,1896. The testator’s widow died in 1899. The learned Special Term, Marear, J., presiding, held that the lives referred to in said 7th clause of the will were those of the widow and of the said posthumous child, Alice. The learned counsel for the plaintiff appellant insists that the youngest child therein referred to was she who had been born and was living at the time of the death of the testator. I think that the plain purpose of the testator was that the property should be held undivided until the youngest of them should reach maturity, in order to make provision for the support and maintenance of his family. To this end he suspended the absolute ownership until that period. I think, therefore, that he had not in view any particular child that could be described as his youngest child, but simply selected such child, whoever it might be, in order that the division should be postponed until all of them became of age.

The term, however, is measured by the life of the widow and the youngest child, and inasmuch as it must be restricted to lives in being at the time of the death of the testator, the question presented is whether a child en veni/re sa mere at the death of the testator is regarded as a life in being within the meaning of the statute. In Long v. Blackall (7 Burn. & East, 96), it was contended that the will violated the rule of the common law against perpetuities in that the lives were not all in being when the testator died. Kenyon, Lord Chief Justice, held that a child en ventre sa mere was within the rule. In the famous case of Thellusson v. Woodford (4 Ves. Jr. 227) Buller, J. (at p. 322 et seg.), discusses the doctrine, com ments upon the cases, and concludes: “ Why should not children en ventre sa mere be considered generally as in existence ? They are entitled to all the privileges of other persons. In this case it is enough to say such a child is capable of having an estate given to him, and consequently to another person for his life.” This decision is noticed by the chancellor in Marsellis v. Thalhimer (2 Paige, 35), where he says: “ That it may be considered in existence for the benefit of others in some cases may perhaps be admitted; as in the case mentioned by Buller, Justice (4 Ves. 323), of an estate given to a third person during the life of an infant en ventre sa mere?'

In Stedfast v. Nicoll (3 Johns. Cas. 18) Kent, J., notes “a late case ” (Doe v. Clarke, 2 H. Black. 400), where “ the court go so far as to say that it is now settled that an infant en ventre sa mere shall be considered, generally speaking, as born, for all purposes for his own benefit'. In that case, Ch. J. Eyre observed,c that an infant en ventre sa mere came clearly within the description of a child living at the time of his father’s death.’ ” A note appended to Stedfast v. Nicoll (supra) by the famous reporter, William Johnson, comments upon the force and effect of the English decisions. In the report of Thellusson v. Woodford (11 Ves. Jr. 112) the chief baron speaks of the extension of 'the rule to a child en ventre sa mere at the time of the father’s death because that contingency must necessarily happen within nine months after the death of a person in being, and. therefore, such construction would introduce no inconvenience. He also notes the case of Doe v. Clarke (2 H. Blackstone, 399) referred to in the opinion of Kent, J. (supra). And he seems to have adopted verbatim the language of Lord Chief Justice Willes in Goodtitler. Wood, cited by the reporter in the note at the foot of the report of Long v. Blackall (7 Burn. & East, 96). Blackstone (Vol. 1 [Cooley’s ed.], 130) says: “ An infant en ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.”

Kent (4 Com. 249) says: “ But the decision of the K. B. upon that point was reversed by the House of Lords ; and it is now the settled law in England and in this country that an infant en venire sa mere is deemed to be in esse, for the purpose of taking a remainder, or any other estate or interest which is for his benefit, whether ' by descent, by devise or under the statute of distributions.” (See, too, Bouvier " Life; ” Cadell v. Palmer, 1 C. & F. 372, 414 et seq. ; Gray Perp. § 220 ; Mason r. Jones, 2 Barb. 229, 251 et seq. ; Crisfield v. Storr, 36 Md. 129, 145; Swift v. Duffield, 5 S. & R. 38 ; Hall v. Hancock, 15 Pick. 255.) Judge Thomas, in his Law of Estates Created by Will (Vol. 1, p. 403), says: “'The suspension of the power of alienation during the minority or life of a child conceived, but unborn at the creation of the estate, is allowed. Such child is in being from the time of conception, and estates limited to him or upon his life are valid.” (Citing Hone v. Van Schaick, 3 Barb. Ch. 488.) The reversal of this case (3 N. Y. 538) did not involve this question.

Cadell v. Palmer (supra) finally settled the rule in England to be that property could not be rendered inalienable beyond a life or lives in being and twenty-one years afterwards without reference to the infancy of any person, and a person en ventre sa mere was for the purposes of the rule considered in existence. (See Fowler Real Prop. Law, 155.) Hr. Fowler says that while this is not binding on our courts, its reasoning is conclusive and establishes the common-law rule. He further points out that the revisers of our statutes only changed the rule which permitted a term in gross of twenty-one years to be added to any number of lives in being and decreased the number of lives to two. (Id. 171.) See, too, Jar-man on Wills (Vol. 1 [6th Am. ed.] *216), where he says to treat the period of gestation, however, as an adjunct to the lives is not perhaps quite correct. It seems more proper to say that the rule of law admits of the absolute ownership being suspended for a life or lives in being and twenty-one years afterwards, and that for the purposes of the rule a child en ventre sa mere is considered as a life in being.

The cases cited by the learned counsel for the plaintiff appellant may be discriminated. Kilpatrick v. Johnson (15 N. Y. 322) holds that the statute that authorized an accumulation for minors then in being or in being at the death of the testator and to terminate at minority, did not contemplate an accumulation for children born after the testator’s death. But in Manice v. Manice (43 N. Y. 376) Rapallo, J., says: “An accumulation for the benefit of an unborn child, to commence after the birth of the child and to terminate with his minority, is lawful, provided that it is also to commence within the time permitted for the vesting of future estates, that is to say, on the expiration of two lives in being; but an accumulation for the benefit of an unborn child, to commence before his birth, is not permitted under any circumstances, and this was the objection to the validity of the accumulations in the cases of Haxtun, v. Corse (2 Barb. Ch. 518) and Kilpatrick v. Johnson (15 N. Y. 322).” The reason for the decision is not applicable in this case. The period in question of the child in the case at bar is its minority.

In Roe v. Vingut (117 N. Y. 213) it was said that the youngest grandchild might be a grandchild born after the death of the testatrix, and hence not in being at the creation of the trust, and that bounding the trust term by such a life would be in violation of the statute and would be void. But the question as to whether a child en ventre sa mere is a life in being was not presented or discussed, and the remark might well apply to a grandchild who was both conceived and born years after the death of the testatrix. I am of opinion that the child en ventre sa mere at the testator’s death, which was born alive and lived, may be regarded as a life in being at the time of the testator’s death within the purview of the statute.

Tile will was executed in December, 1893. In March, 1895, the testator executed a codicil which reads as follows: “ I hereby ratify and confirm said Will in every respect save so far as any part of it is inconsistent with this codicil. I give and bequeath unto my beloved son, James M. Heatherton, Jr., a one equal third part or interest in and to the Plumbers’ Trade Journal mentioned in the foregoing Will, such interest to commence at my decease, and I direct that the said Plumbers’ Trade Journal shall be continued under the management of said son James M. Heatherton, Jr.”

The.learned Special Term decided that a trust was created of two-thirds of the estate, and that the third part, bequeathed to James, vested in him upon the death of the testator and was not included in said trust. It further decided that the trust had terminated upon the death of Alice M. Heatherton, and that the estate is vested under the terms of the will and the codicil, in shares as follows, one-third in James M. Heatherton and the remaining two-thirds in the remaining children, in equal shares.

Reading the will and the codicil, mindful that the scheme of the testator manifested in both is to stand as far as possible, it will be noticed that the testator, neither in express terms nor in terms of necessary implication, diminished or increased the interest given to James by the will. By the will he gives one-half of the paper and of the money in the bank to James, at the termination of the lives of the widow and of the youngest child. By the codicil he gives one equal third part of the paper at his decease to his son James, who by both codicil and will is to be the manager thereof. I think that his intent as declared by will and codicil, read together, was to take one-third of the paper out of the trust, and to continue that trust as to two-thirds of the paper, and of the money in bank and trust company, without disturoing the proportions of ultimate disposition made of the paper and the money; that is, that James in addition to his absolute one-tliird is to have so much of the property at the termination of the trust as will afford to him one-half of the paper and one-half of the money. This would afford to him at the termination of the trust one-sixth of the money and one-sixth of the paper in addition to the one-third or two-sixths already given to him. There is strong reason for this construction in the fact that if the final scheme of the testator is changed by the codicil so as to give James the one-tliird only that was to vest in him at the death if the testator, then such scheme fails to make disposition of the entire estate, for it would dispose of but the one-tliird given to James and the one-half given to the other children at the termination of the trust. There is nothing in the will or codicil, or in will and codicil, which would justify an increase of the share given to the children, exclusive of James, by the addition of the said one-sixth undisposed of.

I am of opinion, then, that the judgment should be modified so as to give one-lialf interest to the children, exclusive of James, at the termination of the trust, and one-sixth to James at that time, and one-tliird also to James absolutely at the death of the testator. It would follow that but two-thirds was subject to the sale ordered and directed by the court, inasmuch as the one-third was vested absolutely in James at the death of the testator.

The judgment should be modified in accordance with this opinion, and as so modified affirmed, with costs to all parties to this appeal payable out of the trust fund.

Bartlett, Woodward and Hirschberg, JJ., concurred; Goodrich, P. J., voted for affirmance on the ground that the provision in the codicil for James M. Heatherton was intended by the testator as a substitution for the provision made for him in the will.

Judgment modified in accordance with the opinion of Jenks, J., and as modified affirmed, with costs to all parties to this appeal payable out of the trust fund.  