
    Matter of the Estate of James A. Duffy, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      April, 1915.)
    Wills—Disposition op Remainder op Estate—When Gift of Remainder Vests—Intention of Testator—Who Entitled to Entire Remainder.
    Where a testator, in disposing of the remainder of his estate after a life estate therein to a sister, directed the conveyance of one-half of his property to a niece, the payment of a certain sum to another sister, and the residue to still another sister to be conveyed at her death to her two sons and a daughter, the gift of the remainder of testator’s estate was future and contingent and did not vest until the death of the life tenant.
    Where by the same paragraph of the will disposing of the residue it was provided that should any of testator’s sisters, nieces or nephews die before the life tenant of the whole estate the property should be divided pro rata among the persons mentioned, testator’s evident intention was to confine the distribution of the remainder among such of those mentioned in the will as were living at the death of the life tenant, and one of testator’s nephews who was the only person mentioned in the will who survived the life tenant of the entire estate was entitled to the remainder.
    Application for the construction of a will.
    Michael J. Scanlan, for John Brady and Alice McDonald, administratrix.
    Edo E. Mercelis, for respondents.
    Geller, Rolston & Horan, for substituted trustee.
    
      Thomas Moore Simonton, for Josephine Marie Kendall et al.
   Fowlee, S.

•— The substituted trustee has filed an account of its proceedings and asks the court to construe the will of testator so that the fund held by it may be distributed among the persons entitled thereto. The will reads as follows:

“ I, James A. Duffy, do will and bequeath to my sister, Ellen C. Duffy (after paying my funeral expenses, which I desire to be inexpensive), all my property and effects. Thereby appoint Mr. Edgar S. Hicks, of Brooklyn, 'and Mr. John Gaynor, of Hew York the executors of this will, with instructions to convert my effects in the best manner their judgment will dictate and to invest it safely at interest for the sole benefit of the said Ellen C. Duffy.

“ In the event of the death of the said Ellen C. Duffy before the death of my niece, Ellen Brady, or my sisters, Alicia and Ann, or my nephews, Peter J. and John Brady, I will that one-half 'of the above property be conveyed to my niece, Ellen Brady, one thousand dollars to my sister Ann, and the balance or residue to my sister Alicia, to be conveyed at her death to her children (Peter, John and Mary). Should either of the above sisters or nieces and nephews die before the death of my sister Ellen, it is my will that the property be divided pro rata on the above basis between the persons above mentioned.”

Ellen 0. Duffy, the sister of the testator, died on the 24th of February, 1914. All the persons mentioned in the will predeceased her, except John Brady, the son of testator’s sister Alicia. That the will created a trust of all of testator’s property for the benefit of Ellen 0. Duffy during her life was determined by this court when it appointed the Farmers’ Loan and Trust Company as substituted trustee in place of Edgar S. Hicks. (Smith v. Central Trust Co., 154 N. Y. 333.) The 'question now to be determined is, Who is entitled to the remainder after the life estate of Ellen C. Duffy? The will was evidently drawn by a person unacquainted with the use of technical legal termn. While it is evident that the testator intended to give to Ellen C. Duffy a life estate in his entire estate, his intention as to the disposition of the remainder is not free from doubt. It is, therefore, necessary to have recourse to those rules of construction recognized by the courts as effective aids in the interpretation of wills which do not clearly express the meaning of the testator. One of those rules is that when the only words of gift are found in the direction to divide or pay at a future time, the gift is contingent and not vested. Applying this rule to the matter under consideration, it is apparent that the testator did not use words of direct gift in disposing of the remainder after the life estate of his sister, Ellen C. Duffy, for he directs that the remainder shall be conveyed to certain persons upon her death. The gift to those persons, therefore, was future and contingent, and did not vest until the death of the life tenant. (Matter of Baer, 147 N. Y. 348 ; Matter of Crane, 164 id. 71 ; Schlereth v. Schlereth, 173 id. 444 ; Salter v. Drowne, 205 id. 204.

The right of the remaindermen to take under the first sentence of the third paragraph of the will was dependent upon their surviving the life tenant. As all of them except John Brady, predeceased the life tenant, their next of kin are not entitled to any part of the estate left by the testator.

There remains to be considered the disposition intended by the testator in the last sentence of the third paragraph of his will. This sentence is involved and its meaning indefinite. It appears to me, however, that the testator intended by the words used in that sentence to indicate that if his niece, Ellen Brady, died before the life tenant, her share should be divided between the testator’s sisters, Ann and Alicia, in the proportion which the value of the share which he had given to Ann bore to the value of the share he had given to Alicia. In the event of the death of any of the other remaindermen mentioned in the will the same principle was to apply in determining the share which the survivors would take. He intended to confine the distribution of the remainder to those of the persons mentioned in the will who were living at the termination of the life estate of his sister, Ellen 0. Duffy. Ellen Brady and the testator’s sisters, Ann and Alicia, predeceased the life tenant. Alicia’s children, Peter and Mary, also predeceased the life tenant. The only one mentioned in the will who survived the life tenant and who, therefore, became entitled to the remainder was John Brady. As he is the only survivor, there is no need to apply the pro rata rule of distribution mentioned by the testator. I will, therefore, hold that John Brady, the nephew of the testator, is entitled to the property now held by the trustee for distribution. • Tax costs and settle .decree on notice.

Decreed accordingly.  