
    ARCHIBALD HAYS, Appellant, v. WILLIAM GOURLEY, Administrator of, etc., of Elizabeth Hays, Deceased, Respondent.
    
      Will—remainder — when rested.
    
    James Hays died in 1828, leaving a will, by which he directed his executors to turn his estate into money, invest the same, and apply the income thereof to the support and maintenance of his wife and children. Then follows the following provision: “ I will, devise and bequeath unto my said children, William, Mary and James, all my estate, both real and personal, of all kinds whatsoever, to be equally divided between them, share and share alike, upon the event of the death of their mother, my said wife.” Held, that the children took vested remainders immediately upon the death of the testator.
    Appeal from a final decree of the surrogate of the city of New York. The facts appear in the opinion.
    
      John P. Seeds Jr., for the appellant.
    
      Cassedy c& Brown, for the respondents.
   Westbrook, J.:

The question which this cause presents, is this: do the next of kin of the husband, James Hays, deceased, or of the wife, Elizabeth Hays, deceased, succeed to the estate owned by the husband at the time of his death ?

James Hays died in the city of Hew York in the year 1828, leaving a last will and testament, which was duly admitted to probate by the surrogate of Hew York, January 16th, 1829.

He left surviving him, his widow, Elizabeth Hays, and his three children, William, Mary and James.

The will directed that his executors should turn his estate into money, invest it, as in their judgment they may deem best,” the proceeds, rent, income or interest ” to be employed and used for the support and maintenance” of his said wife Elizabeth, and his children, William, Mary and James, and for the education of said children.” It next provided that each of the children on arriving at the age of twenty-one, or at the time of marriage, if such marriage was with the consent of the mother, if living, should receive the sum of $1,000.

The next clause of the will was as follows: I will, devise and bequeath unto my sand children, William, and Mary, and James, all my estate, both real a/ndpersonal, of all kinds whatsoever, to b'e equally dvoided between them, share and share alike, upon the event of the death of their mother, my said wife Elizabeth.”

The mother of the children and wife of the testator, Elizabeth Hays, outlived all the children, and departed this life in the city of Hew York in the year 1870. The children, James and Mary, died before their brother William, unmarried, without issue, and intestate. William also died intestate, without issue, leaving no widow, brother or sister. The appellant is the brother of the testator, James Hays, and claims the property as his next of kin. The respondent is the administrator of Elizabeth Hays, deceased, and claims it for the benefit of her estate.

The executors of the will of James Hays, deceased, are all dead. One John Adams was appointed administrator, with the will annexed, of said James Hays, deceased, and applied for a final settlement of his accounts. Pending such accounting, he also died, and his executor (Allen H. Adams) continued the accounting.

Upon such accounting, the executors of Elizabeth Hays, deceased, insisted, that, under the statute of distributions, the mother of the deceased children took all the property as their next of kin. On the other hand, the appellant claimed that the estate of James Hays, deceased, never vested in the children at all; that the title thereto was in the executor of the will of James Hays, deceased, and that, consequently, nothing whatever passed to the mother, but that the whole estate descended to him as the next of kin to the father. The surrogate took the former view, and the brother of the father brings this appeal. As the whole estate was to be turned into money, the will is of course to be construed as a will of personal property.

The only question to be disposed of, is this: Did the estate vest in the children, by the terms of the will, immediately upon the death of the testator ? If it did, the decision of the surrogate was right.

In Everitt v. Everitt, Denio, Ch. J., thus states the rule which governs this case: The leading inquiry upon which the question of vesting or not vesting turns, is whether the gift is immediate, and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the beneficiary arriving of age, or surviving some other person, or the like.”

The clause of the will quoted supra, expressly wills, devises and bequeaths all his estate, both real and personal, to the children, and only postpones the division of the property upon the event of the death of their mother.” “ The gift,” to use the language of Judge Denio, “ is immediate, and the time of payment or of enjoyment only is postponed.”

It follows that the decree of the surrogate was right, and should be affirmed, with costs of appeal to be paid by appellant.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs to be paid by appellant. 
      
       29 N. Y., on p. 75.
     