
    Anna R. Richards and Margaret F. Randolph, Respondents, v. Charles H. Hartshorne and Others, Respondents, Impleaded with the Rahway Library Association, Appellant, and Others.
    First Department,
    January 26, 1906.
    Will construed-—remainder when contingent — foreign .corporation' entitled to remainder if qualified to take by statute before happening of contingency. , '
    A will devised certain real estate in trust for two lives, the net income to be paid to certain beneficiaries during the period of trust, and the principal to the issue of said beneficiaries, if any surviving at the termination of the trust, “but if ' there shall be no lawful issue surviving * * •*' then in further trust to convey the same” to a foreign library corporation-named,
    At the testator’s death such foreign corporation was not .entitled to take real estate in this Slate by devise, -but subsequently and before the expiration of the trust, chapter 136 of the Laws of 1891, amending section 18 of the General - Corporation Law,, was passed, which provided:” Any foreign corporation. * * * - may take by devise any real property situated within this State and hold the same for not exceeding five .years,” etc. '
    Both persons entitled to the income died without, issue and at the death of the-last of them the trust expired. In an action to construe said will,
    
      Held, that the remainder to said foreign corporation was contingent on the death Of said beneficiaries Without issue surviving, an. uncertain future event, and hence the remainder did not-vest until the happening of-such event;.
    That, as said foreign corporation became qualified by statute to take the devise before the remainder vested, such devise became effective.
    '' Appeal by the defendant, the Bahway Library Association, from a. judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered, in the office of the clerk of the . county of Hew. York on the 19th day of July, .1905, upon the decision. of the court rendered after a trial at the Hew York Special Term.
    
      George W. Miller, for the appellant.
    
      Francis Y. Dobbins, for the plaintiffs, respondents.
    
      George Holmes, for the respondent Hugh Hartshorne.
    
      James F. Horan, for the respondents Mary H. Biddle and others.
   O’Brien, P. J.:

This action is brought to construe the will of Lucy H. Eddy, deceased, the question involved being whether the appellant, the Rahway Library Association, is entitled to-take and hold property under a devise in the will. The particular clause in dispute, so far as material to the question now presented, reads as follows: I give and devise to my executors hereinafter named, the survivors and survivor of them, my store and lot of ground known as Ho. 70 South Street in the City of Hew York, * * * in trust, that during the lives of Louisa Pollock * * * and Eddy Shipley, * * * they apply the net rents to the use of the said Louisa Pollock and Eddy Shipley during their joint lives, and on the death of either of them leaving the other surviving and without leaving issue surviv- . ing .them, the whole of said net rents to be applied to such survivor for life; but if there should be issue surviving them, one-half of said net rents to be applied to the use of such issue, if one solely, and if more than one, jointly and equally, and upon the death of the survivor of the said Louisa Pollock and Eddy Shipley, then upon the further trust that my said executors, or the survivor of them, * * * shall convey the said store and lot of ground to the lawful issue of said Louisa Pollock and Eddy Shipley ‘per stirpes’ in equal shares, or to the lawful issue of such" one of them who shall have died leaving lawful issue surviving; but if there shall be no lawful issue surviving the said Louisa Polloclc and Eddy Shipley, then in further trust to convey the same to the Trustees of the Rahway Library AssociationThe testatrix died in 1879; one of the life beneficiaries, Eddy Shipley, had predeceased her, leaving no issue, and the remaining life beneficiary, Louisa Pollock, died in 1903, also without issue. Subsequent to the death of the testatrix the trustees, under an order of the court and a power of sale contained in the will, sold the real- property, .and the fund resulting therefrom is now in the custody and control of the defend-ant Mercantile Trust Company as substituted trustee.

It is conceded by the appellant, the Railway Library Association,, that at the time of the death ofjtlie testatrix the. association, being a foreign, corporation, could not take real property situated in this State "by devise; and, therefore, if the devise to it was a vested remainder it failed, and the property fell into the residuary estate. It contends, however, that the remainder was not vested but contingent, and that, prior to the death of the’ last surviving beneficiary without issue; the disability to take the property had been removed from the association by an act of the Legislature of the .State of ¡New York (Gen. Corp. Law [Laws of 1892, chap. 687], § 18, as amd. by Laws of 1894, chap. 136). This statute reads as .'follows : Any foreign corporation * • * * may take by devise any real property situated within this. State and hold the sttme for not exceeding five years from * * * the time when the- right to the possession thereof, vests in such devisee. and convey it by deed or otherwise in the same manner as a domestic corporation.”

There can be no doubt that under this statute the library ássocia-' tion was enabled-to take real property by devise, and, if the remainder was contingent, the vesting thereof in the--association being postponed until .the death of the surviving.life tenant without issue, which occurred subsequent to the enactment of the statute, then the devise is good. . If, on the other hand, the remainder vested at the death of the testatrix, as contended by the respondents, then the' statute will be of no avail to the library association, and the-devise would lapse and fall into .the residuary estate. The real issue to-be determined, therefore, is whether the remainder was vested or contingent.' The court at Special Term held that it was the former, ' but we do not agree with this conclusion:

According to the statute (1 R. S, 723, § 13, revised in Real Prop. Law [Gen. Laws,, chap. 46; Laws of 1896, chap.-547], § 30), a future estate is contingent “while the person to whom or the event on which it is limited to take effect remain's Uncertain.” Here the one who would ultimately be entitled to the corpus of the trust, remained uncertain until the death of the surviving life tenant. If upon the happening of that event there had been issue surviving", then the library association would have been cut off from any interest in the estate. Its interest was contingent upon the happening of an uncertain future event.

In Smith v. Edwards (88 N. Y. 92) J udge Finch said: “ It has been often held that if futurity is annexed to the substance of the gift the vesting is suspended.” This statement was quoted with approval in Matter of Crane (164 N. Y. 76), and the following rules applicable to gifts were then formulated : “First. Where the only words of gift are found in the direction to divide or pay at a future time the gift is future," not immediate; contingent and not vested. * * * Second. Where the. gift is of money and the direction to convert the estate is absolute, the "legacy given to a class of persons vests iil those who answer the description and are capable of taking at the time of the distribution.”

(In repeating these rules we are not unmindful of the other general rule which favors the vesting of estates, but with respect to this latter we recall that it was said by Judge Vann in Lewisohn v. Henry (179 N. Y. 352, 361) that, “While the general rule favors the vesting of estates, it was adopted by courts as a guide to the probable intention of testators, and is never applied when that intention, as gathered from .the entire will, is that the estate should not vest. All rules for the construction of wills yield to the actual intention, when that is reasonably clear to the mind of the júdge reading the words of the- testator.”

■ It will be observed here that there is no present gift to the library association ; the gift is to the trustees, who are directed to hold the corpus of the trust until, the death of the surviving life beneficiary, and upon the happening of that event to pay it over to the party entitled thereto — that is, to the surviving issue of the life beneficiaries if' there are such issue, and if not, then to the library association. These provisions in our judgment show an intention on the part of the testator to keep the ultimate vesting of the estate in abeyance until the happening of the event- mentioned, and to make the right of the library association to the trust fund dependent upon the future contingency of the death of the life tenants without surviving issue. In this respect the will is similar to that construed by the Court of Appeals in the case of Lewisohn v. Henry (supra), By the terms of the will there considered a number of trusts were established, each for the benefit of one of testator’s children, the child to have the income therefrom during its life, and when it reached a certain age to receive-, one-half pf the corpus of the trust,. the balance to be held by the trustees until the child’s death when' it should vest in its issue.. Without further ■ stating the provisions of the long and elaborate clause creating these trusts it is sufficient to call attention, to portions of the opinion, showing that the considerations there leading the Court of Appeals to the conclusion that the remainders were contingent also apply to- the present case, judge VAim .said': “ The trustees took the legal title With the usual po wer of management and with the duty of applying the net income to the use of the respective beneficiaries. They were to ‘ have and to hold ’ each share until the child for whose benefit it had been set apart should reach a certain age, and upon arrival ’ at that age,: they were to convey and -pay over to him or her a part of the capital ‘in fee simple and absolutely.’ The use.of the word ‘upon,’ followed by' a direction to convey, indicates that until the contingency named should happen; there was to be no vesting. * * * . There was no present gift to any child, but. when or .-provided'the child reached the age specified. Bo part of' the capital was to go to the children until the time fixed for absolute transfer to them ’ should arrive. The direct gift to the executors and the absence of any gift of capital -to the children in the first instance, show that there was no intent to vest title in them prior to the date named for' distribution. The gift of capital to the children was through the direction to convey, and there was no vesting until the time to convey came around. (Matter of Baer, 147 N. Y. 348, 354 ; Matter of Crane, 164 N. Y. 71, 76.) ”

In the; present case also it is to be noted that there are no words expressing a present gift to the library association. ■ The trustees took the legal title and were to hold the corpus of the trust until-the event happened upon which they were directed to pay it over 'to the party ultimately entitled thereto.

Chief judge- Parker, in construing the will before the court in Matter of Crane (164 N. Y. 76, 80), says: “ In the first place it will be noted that- there is no direct gift of the principal of the trust estate, but instead a direction to divide it on .the death of the testator’s widow.” And thereafter he says: “ Without pursuing this subject further, I state the conclusion at which we have arrived: That aside from the direction to the executors or trustees to divide and distribute the estate, there are no words importing a gift, and hence it becomes our duty to give force and effect to the rule that where the only gift is found in a direction to divide or pay at a future time, the gift is future, not immediate; contingent and not vested.” These words, are also applicable to the will now before us, and under the two decisions cited as well as the cases therein referred to, we think the court at Special Term was in error in holding that the remainder was vested. On the contrary, it is difficult to co.nceive words more apt than those used by the present testator to show an intent to create not a vested but a contingent remainder in favor of the library.

This being so and it being undisputed that the library association was competent to take the property at the time the surviving life beneficiary died without issue, it follows that the devise to it was effective, and, therefore, the judgment appealed from must be reversed, with costs to the appellant payable out of the estate, and the defendant Mercantile Trust Company directed to account for' and pay over to the Rahway Library Association the fund now in its hands.

Patterson, McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment reversed, with costs to appellant payable out of the estate, and judgment ordered as directed in opinion.  