
    United States Trust Company of New York, as Trustee under the Last Will and Testament of Richard N. Peterson, Deceased, Respondent, v. Schuyler S. Wheeler, Individually and as Executor, etc., of Ella A. Wheeler, Deceased, and as Administrator, etc., of Richard S. Wheeler, Deceased, Respondent; Mary A. Stephens and Others, Appellants.
    
      'Trust to pay income to a wife for her life and on her death to a daughter for life and, if the daughter should leave issue her surviving, the principal, subject to such life estate, to the daughter’s issue — the fund passes to a son of the daughter who survives his mother and dies before his grandmother.
    
    A testator, by his will, gave a sum of money to a trustee in trust to pay the income “ to my wife, Henrietta Peterson; so long as she shall live, and upon her death to pay such income to my daughter, Ella A. Wheeler, so long as she shall live, and upon the death of my daughter, if she shall leave a child or children her surviving, to pay the said principal sum of Fifty thousand dollars and any accumulations thereof to said child or to said children in equal shares. * * *
    “ Mfth. Upon the death of my daughter, Ella A. Wheeler, without leaving a child or children her surviving, and also upon the death of my wife, Henrietta Peterson, I give, devise and bequeath one-half of so much of my estate as is hereinbefore by the second and third divisions of this will given and bequeathed to the trustees therein named to my sister, Mary A. Stephens, and one-sixth thereof to my brother, William G. Peterson, and one-sixth thereof to my nephew, Richard G. Peterson* and one-sixtli thereof to my niece Amelia Peterson.”
    'The testator was survived by his wife and daughter. At the time of the testator’s death the daughter had no issue, but subsequently a son was born to her.
    The son survived his mother and the testator’s wife survived both of them.
    
      .Held, that, as at the time of the testator’s death there was no child or children of the testator’s daughter then living, the title to the fund not having been vested in the trustee, vested in the persons mentioned in the 5th clause of the will;
    That their title was divested by the birth of the son to the testator’s daughter;
    That, when the testator’s daughter died, the trust fund vested absolutely in her son, payment being postponed until the death of the testator’s widow;
    'That the son having died prior to the death of the testator’s widow, his next of kin were entitled to receive the trust fund to the exclusion of the persons mentioned in the 5th clause.
    Appeal by the defendants, Mary A. Stephens and others, from •certain portions of a judgment of the Supreme Court in favor of "the plaintiff and the defendant Wheeler, entered in the office of the clerk of the county of New York on the 24th day of March, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, construing the last will and testament of Richard N. Peterson, deceased.^
    
      Edwin M. Wight, for the appellants Stephens and another.
    
      Jacob W Kahn, for the appellants Richard Gr. and Amelia. Peterson.
    
      Messmore Kendall, for the respondent Schuyler S. Wheeler.
    
      Edkoard W. Sheldon, for the plaintiff, respondent.
   Hatch, J.:

This action was brought by the trustee of the will of Richard N~ Peterson, deceased, to determine the rights and interests in the-trust created under the 2d clause of the will. The testator died on April 1, 1894, and by the. terms of his will he provided, among-other things, as follows :

Second. I give and bequeath to the United States Trust Company of the City of New York the sum of Fifty thousand dollars, in trust nevertheless to take, manage and invest the same and the income' therefrom in quarterly yearly payments, so far as such payments may he practicable to pay to my wife Henrietta Peterson so-long as she shall live and upon her death to pay such income to my daughter Ella A. Wheeler so long as she shall live, and .upon the death of my daughter, if qhe shall leave a child or children her surviving to pay the said principal sum of Fifty thousand dollars- and any accumulations thereof to said child or to said children in equal shares. * * *
“ Fifth. Upon the death of my daughter Ella A. Wheeler without leaving a child or children her surviving, and also upon the. death of my wife Henrietta Peterson, I give, devise and bequeath one-half of so much of my estate as is hereinbefore by the second and third divisions of this will given and bequeathed to the trustees, therein named to my sister Mary A. Stephens and one-sixth thereof to my brother William Gr. Peterson and one-sixth thereof to my nephew Richard Gr. Peterson and one-sixth thereof to my niece. Amelia Peterson.”

The wife of the testator and the daughter, Ella A. Wheeler, survived the testator; at that time the daughter had no issue, but on. January 5, 1895, a son, Richard S. Wheeler, was horn, On April 8, 1895, Ella A. Wheeler died, leaving said Richard S. Wheeler her sole heir and next of kin. This infant son died on November 22, 1896, leaving his father, Schuyler S. Wheeler, his only next of kin, to whom letters of administration were duly issued. In July, 1894, the plaintiff trust company received $50,000 in cash from the executors of Richard N. Peterson, deceased, and administered the trust until the death of testator’s wife, on July 4, 1901. The fund of $50,000 created by the trust is now claimed by Schuyler S. Wheeler, as sole next of kin of Richard S. Wheeler, deceased, and as administrator of his estate, and by Mary A. Stephens, William Gr. Peterson, Richard G. Peterson and Amelia Peterson as legatees under the 5th clause of the will.

We think the construction of this will is plain, both by its express language and from the scheme of the will as a whole, so far as the trust fund which is the subject of this action is concerned, and that is the only question in which we are now interested. The express provision of the 2d clause, of the will is to pay to the wife the income so long as she shall live, and upon her death to pay such income to the daughter so long as she shall live. Then comes the period of distribution. Upon the death of the daughter, if she leave a child or children her surviving, the trustees are then directed to pay the trust fund and its accumulation to such child or children in equal shares. If the daughter die without leaving a child or children then the defendants, by virtue of the 5th clause of the will, are to take the fund in the manner and form therein specified.

It is evident, therefore, that the intent of the testator was to carve out from the fund the two life estates and then to distribute and pay over the fund to the issue of the daughter or to the collateral relatives. The language is so plain and the provisions of the will so particular in these respects as to admit of no doubt "as to the intention of the testator. It is doubtless true that as there was not at the date of the death of the testator any child or children of the testator’s daughter then living, that the title to the fund, not having been vested in the trustee, became immediately vested in the defendants, appellants (Barber v. Brundage, 50 App. Div. 123; affd. on appeal, 169 N. Y. 368), the rule in this respect being the same to personal property as to real property. There were at this period parties in being who would take immediately upon the termination of the two life estates. The title thus vested in these defendants, however, was subject to be divested by the birth of a child or children to the daughter, who should survive the termination of the life estates. (Dougherty v. Thompson, 167 N. Y. 472.) This is exactly what occurred and what was within the fair contemplation of the testator, as indicated by the scheme of the will, and he made precise provisions for such contingency. It, therefore, follows that as the life estate terminated leaving surviving a child, the issue of the daughter, a time had then arrived for the distribution of the estate, and as the birth of the surviving child divested the defendants of the estate theretofore vested in them, such child took the wdiole fund, and the contingencies provided for in the 5th clause of the will were defeated. As the estate became vested in the surviving child, upon its death its father took its estate, he standing in relation thereto as next of kin.

Nothing which is contained in Clark v. Cammann (160 N. Y. 315) militates against this construction. Therein the fund provided to be held in trust for the life of the niece was made, by the terms of the will, immediately payable to her surviving children and to the issue of any such child who had deceased. At the time of the testator’s death two children of the life tenant were living, but these children predeceased their mother, leaving no issue; consequently there was no child or children living at the termination of the life estate, and as the will made no provision for such a contingency it was held that the testator died intestate as to the remainder of the fund. The two cases are not at all parallel, for here the child survived the termination of the life estate, and it is clear that the testator would not have died intestate had not such contingency happened, as to the remainder of the fund, but the same would have gone by express and particular direction to the defendants by virtue of the provisions contained in the 5th clause of the will. It is needless to point out all of the distinctions which appear in the discussion in the Claris case and the language and scheme of the present instrument. The farther they are pointed out, the greater their disparity appears. Nor is anything whiclr is contained in Lese v. Miller (71 App. Div. 195) in conflict with the conclusion at which we have arrived. Therein, by the provisions of the will, it was held that the title to the estate became vested in the trustees during the life estate. There was no language used in that will which could be construed as a gift over to the children until after the termination of the life estate when the direction was to convey the property to the testator’s children share and share alike or to the issue of such child as should have died. No part of the estate therein could vest in any of the children prior to the period of distribution and the latter was required to be made among the children or the issue of children then surviving. As one child had died leaving issue which also died before the period of distribution arrived, it was held that neither she nor the child took anything, as the right to take depended upon survivorship at the period of distribution, and as no one was then in existence who could take, nothing descended to the husband of the child and the father of the issue who had died. It is evident that the two cases are entirely dissimilar. Here the child survived his mother and the language of the will is express that the whole of the fund should then vest absolutely, the payment of the fund to be postponed until the death of the testator’s widow.

It follows that the judgment should be affirmed, with costs to the respondents payable out of the fund.

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

Judgment affirmed, with costs to the respondents payable out of the fund.  