
    Alma B. Lyons et al., by Guardian, Plaintiffs, v. George W. Weeks et al., Defendants.
    (Supreme Court, New York Trial Term,
    December, 1899.)
    Remainder — Vesting — Not postponed by death of remainderman before life beneficiary.
    The will of a testator gave certain lots to his executors in trust and directed them to pay the net rents and profits to his adopted son during life. Upon the son’s death, the testator devised the lots to the wife and to the three children of the adopted son “ share and share alike, the issue of such as may have died to take the share which his, her or their parent would, if living, have taken”. One of the remaindermen died before the life beneficiary and devised her share by will.
    Held, that her devise was valid, as the remainder vested in her at the death of the testator and was not defeated by her death before that of the life beneficiary.
    That the clause, relative to the right of issue to take the share of a deceased parent, did not postpone vesting until the death of the life beneficiary, but merely meant that, if, at the time of the testator’s death, any devisees were dead, their issue should be substituted.
    Actions in ejectment.
    Booraem, Hamilton & Beckett, for plaintiffs.
    Jay & Candler, for defendants.
   Mg Ad am:, J.

These are ejectment suits brought by the infant children of Clara Louise Lyons against the trustee under her last will and testament and George W. Weeks, one of the trustees under the last will and testament of Jacob Weeks, deceased. By the third clause of the will of Jacob Weeks he gave, devised and bequeathed to his executors certain lots of ground in the city of New York, which are the subjects of these actions, “ upon trust, to collect the rents, profits and income thereof during the life of my adopted son, Jacob Weeks Cornwell, son of John T. and Ann Cornwell, and, after expending therefrom such amount as they deem necessary to keep the said premises in good order and repair and the property insured against loss and damage by fire, to pay the remainder of such rents as and when collected to my said adopted son, Jacob Weeks Cornwell, during his life. TJpon his death I give, devise and bequeath the said lots of ground and buildings to Virginia Cornwell, wife of said Jacob Weeks Corn-well, Ida Van Cott, Clarissa Lyon and Hillard Filmore Cornwell, children of the said Jacob Weeks Cornwell, share and share alike, the issue of such as may have died to take the share to which his, her or their parent would, if living, have been entitled.” Jacob Weeks Cornwell, the life beneficiary, died in the city of New York on the 6th" day of November, 1898. Prior to his death Virginia Cornwell, his wife, and one of the devisees above named, died intestate in June, 1890, leaving her surviving three children, Ida Van Cott, Clarissa Lyon (whose true name was Clara Louise Lyons), and Hillard Filmore Cornwell, the other devisees above named. Clara Louise Lyons died on the 17th day of October, 1892. By her will she devised all her residuary estate to Charles H. Ostrander, as trustee, for the benefit of her children, Alma, Harold and Cornwell. The plaintiffs claim in this action that the remainder given by the third clause of the will of Jacob Weeks did not vest an estate in fee in Clara Louise Lyons which was devisable and could pass under her will, and insist that upon the death of the said Jacob Weeks, whatever estate she took was subject to be divested in the event of her death during the lifetime of her father, the life beneficiary, and that as such event happened, her children took the share which she would have taken had she survived her father, and that they, the children, became, upon the death of Jacob Weeks Cornwell, the absolute owners of an undivided fourth part of the premises, and entitled to the possession thereof On Hay 9, 1881, when the will was made, Jacob Weeks was about eighty years of age; he lived but a short time thereafter, and his will was admitted to probate September 27, 1881. It is, undoubtedly, a general rule of law that where property is given to trustees for the benefit of a person during life and upon the death of such beneficiary to others, the remaindermen take a vested remainder in fee which is not defeated by the death of such remaindermen during the life of the beneficiary. Mitchell v. Knapp, 54 Hun, 500; Matter of Mahan, 98 N. Y. 372; Van Camp v. Fowler, 59 Hun, 311; Livingston v. Greene, 52 N. Y. 118; Byrnes v. Stilwell, 103 id. 453; Matter of Young, 145 id. 535; Stokes v. Weston, 142 id. 433; Nelson v. Russell, 135 id. 137; Matter of Murphy, 144 id. 557; Benson v. Corbin, 145 id. 351; Matter of York, Id. 535; Miller v. Gilbert, 144 id. 68; Washbon v. Cope, Id. 287; Bisson v. W. S. R. R., 143 id. 125; Sawyer v. Cubby, 146 id. 192; Matter of Tompkins, 154 id. 634. Mrs. Clara Louise Lyons being alive at the time of the testator’s death, and having in this manner become possessed, under his will, of a vested remainder in the property in question, it was alienable by her in the form of a conveyance by deed or devise by will. She chose to make a will, and by it the title to the property involved passed to persons other than the plaintiffs, who have, in consequence, neither title nor right of possession. The contention of the plaintiffs is that although Mrs. Lyons survived the testator, Jacob Weeks, she took no title because the life tenant survived her, and that, on his death, the property vested in the plaintiffs, under the words of the will of Jacob Weeks, that the issue of sueh of the devisees as may have died are to take the share to which the parent would, if living, have been entitled. The plain import and intention of these words are that if at the time of Jacob Weeks’ death any of the devisees were dead, the issue of such devisee or devisees should become substituted therefor. The testator did not mean to postpone the vesting of the estate until the death of the life tenant, and it is only by holding that such a result was intended that the plaintiffs have any right or title to the property in question. The court, in Nelson v. Russell, supra, at p. 140, said: “ The authorities are quite uniform that the words from and after,’ used in a gift of remainder following a life estate, do not afford sufficient ground in themselves for adjudging that a remainder is contingent, and not vested, and unless their meaning is enlarged by the context they are regarded as defining the time of enjoyment simply, and not of vesting the title. Moore v. Lyons, 25 Wend. 118; Livingston v. Greene, 52 N. Y. 118; Rose v. Hill, 3 Burr, 1882; Doe v. Prigg, 8 B. & C. 231. The presumption is that a testator intends that his dispositions are to take effect either in enjoyment or interest at the date of his death, and unless the language of the will by fair construction make his gifts contingent, they will be regarded as vested. Words of survivorship and gifts over on the death of the primary beneficiary are construed, unless a contrary intention appears, as relating to the death of the testator. Vanderzee v. Slingerland, 103 N. Y. 55; Matter of N. Y., L. & W. R. R. Co., 105 id. 92.” There is nothing on the face of the will of Jacob Weeks showing that it was the intention of the testator that the enjoyment of the estate devised to the plaintiffs’ mother should be postponed until the death of the life tenant, Jacob Weeks Corn-well, and depend upon her surviving him. For this reason Flanagan v. Staples, 28 App. Div. 319, and kindred cases cited by the plaintiffs are inapplicable. There must be judgment for the defendants.

Judgment for defendants.  