
    James Van Camp, for himself and other legatees under the will of Ann Jennette Van Camp, App’lt, v. Albert Fowler, Ex’r, et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    1. Will—Construction.
    By the will of defendant’s testator, the residue was devised to the executor in trust for the natural life of the widow, to pay to her so long as she remained his widow the income for the support of herself and son, and after her death, unless it should occur before the son was twenty-one years of age,and in that event, when the son arrived at majority, the whole estate was given to said son. The son died before the widow, and under twenty-one. Held, that under the will the son took an interest that vested at the testator’s death, and that upon his death under age the interest passed to his heir and next of kin.
    3. Same—Action by beneficiary.
    A beneficiary has a right, somewhat in the discretion of the court, to bring an action for the benefit of the estate where the executor refuses to bring it.
    
      Appeal from certain portions of a judgment entered in Onondaga county on the 8th October, 1890, upon the decision of the Onondaga special term, October, 1889.
    The action is brought for the construction of the will of Oliver H. Perry, who died at Truxton, Cortland county, 1ST. Y., on the 21th January, 1861, leaving real and personal estate, and leaving a widow, Ann Jennette Perry, and as his sole heir and next of kin a son, Walter T. Perry, then about three years old. In his will, after providing for debts and funeral expenses, he gave and devised “ all the rest, residue and remainder of both my real and personal estates unto Albert Fowler, my executor hereinafter named and appointed, in trust for and during the natural lifetime of my wife Ann Jennette Perry, for the uses and purposes hereinafter specified; ” and he then provided that his executor should pay annually to his wife, as long as she remained his widow, the clear uses, profits and increase of the trust estates for the support and maintenance of herself and his son, and in case that was not sufficient for that purpose, then he directed his executor to make up the deficiency out of the trust estate. In case his wife remarried, he directed his executor, during the minority of the son, to pay annually to his wife out of .the trust estate or the uses and profits thereof sufficient to provide for the support and maintenance of the son. In case his wife after her remarriage should not have any other legal source from which to derive a comfortable support, he directed his executor to pay to her from time to time out of the trust estates or the uses and profits thereof sufficient to supply such deficiencies. Incase his wife died before his son arrived at twenty-one, he directed his executor to provide for his support and maintenance during minority. Then came- the following provision:
    “And from and immediately after the decease of my said wife, unless such decease shall occur before my said son arrives at the full age of twenty-one years, and >sn such case when he, my said son, shall arrive at such age of majority, I give, bequeath and devise all that shall then remain of said trust estates and the uses and profits thereof unto my said son Walter T. Perry, his heirs and assigns forever ; and I further order that my said wife receive the payments hereinbefore ordered to be made to her in lieu of dower."
    He then appointed Albert Fowler sole executor, giving him full power to sell and convey any of the real estate at such time or times and in such manner as to him should seem best.
    The will was duly proved on February 5, 1864, and letters testamentary issued to the defendant Albert Fowler. He afterwards sold and converted the real and personal estate into money. Prior to August 22, 1866, the widow married the plaintiff James Van Camp. On 22d August, 1866, the son Walter T. Perry died, leaving his mother Mrs. Van Gamp his only heir and next of kin. She took out letters of administration on his estate on the 14th October, 1867. Soon after this, Mrs. Van Camp brought an action in the supreme court in her own name as plaintiff against Albert Fowler as executor, setting forth in her complaint the foregoing facts, and that the executor had in his hands about $3,000, and she alleged that the executor had no right to the possession of this, but that upon the death of Walter T. Perry the estate passed to her as his heir at law and personal representative and that she as such was entitled to the same. She'also alleged that she had no other legal source of support and that the executor had neglected to provide for her. She asked for an accounting and for a construction of the will to the end that it might be determined what were the rights of herself and of the executor, and that the executor be adjudged to pay her the amount of the estate or such part thereof as she might be adjudged to be entitled to annually or otherwise. The defendant therein put in a general denial.
    The case was tried at special term February, 1868, and the decision, after fixing the amount in the defendant’s hands, decreed that the plaintiff therein was legally entitled to be paid the accumulations of interest on the balance of the fund as the same' become due and to have the principal applied to her comfortable support whenever she should be unable to derive such support from any other legal source, and directed the defendant to safely invest the fund and pay the interest to the plaintiff, and under the order of the court apply the principal whenever necessary. It was not decided as to who was the owner of the balance of the fund. After this and down to the time of her death on .March 28, 1889, Mrs. Van Camp received from the executor the interest on the fund. The executor now has in his hands $2,711.63 besides some interest. Mrs. Van Camp left a will which was proved on 3d June, 1889, and letters testamentary issued to the defendant Levi Fowler. In this will the plaintiff is given a legacy of $1,000 and is also residuary legatee of the personal estate. Mrs. Van Camp left no property except her interest as heir at law and next of kin of Walter T. Perry in the estate of Oliver H. Perry. Upon application of the plaintiff, the defendant Levi Fowler as executor of Mrs. Van Camp declined to bring an action for the construction of the will of Oliver H. Perry, and the defendant Albert Fowler as executor, etc., also declined. Thereupon the plaintiff brought the action.
    The defendants, other than Levi Fowler and Albert Fowler, are the present heirs and next of kin of Oliver H. Perry, being his brothers and sisters or their representatives, and they claim to be entitled to the fund in controversy.
    Upon the trial it was decided that under the will of Oliver H. Perry no estate in the fund and no legacy vested in Walter T. Perry during his minority and the life time of the widow, and that during such minority the whole of the estate was in the trustee and that Walter T. had no vested estate therein; that upon the death of Walter T. before attaining his majority and upon the death of Mrs. Van Camp, the fund belonged to and was still vested in the estate of Oliver H. Perry as undisposed of and not bequeathed under his will; that the fund now in the hands of the executor, the defendant Albert Fowler, is to be distributed among the defendants as next of kin of Oliver H. Perry as property undisposed of by the will; that the judgment in the action brought by Mrs. Van Camp is not a bar to this action and the plaintiff is not bound thereby; that the complaint be dismissed, with costs. The plaintiff appeals from the judgment except as to the provision in regard to the judgment in the action brought by Mrs. Van Camp.
    
      Wm. M. Boss, for app’lt; Lewis & Wilson, for resp’ts.
   Merwin, J.

It was apparently assumed by both parties at the trial, and is here, that if the legacy or devise to Walter T. Perry vested, so that upon his death it went to his heirs or representatives, then the estate of Mrs. Van Camp, represented by her executor, the defendant, Levi Fowler, would be entitled to the fund. The controversy was between the representatives of the estate of Mrs. Van Camp holding the vested rights, if any, of Walter T. Perry upon the .one hand, and the defendants, the present heirs and next of kin of Oliver H. Perry, upon the other.

The claim of the plaintiff is that the bequest and devise to Walter T. Perry passed an interest that vested at the time of the death of the testator. We think that this position is sustained by authority. There is here a direct gift to Walter T. Perry, his heirs and assigns, and it is within the rule laid down in Matter of Accounts of Mahan, 98 N. Y., 376, that, if there be a direct gift to legatees, a direction for payment at the happening of a certain event should not prevent its vesting and, therefore, the personal representatives of a legatee dying before the event happened shall be entitled to receive it when payable. In that case, as also in Goebel v. Wolf, 113 N. Y., 405; 23 N. Y. State Rep., 176, there was an intervening trust for the support of the widow and of children until majority. This did not prevent the vesting. The use of the expression “ when he, my said son, shall arrive at such age of majority," did not prevent the vesting. 1 Jarman on Wills, 5th ed., 806; 4 Kent Com., 232. Mor did the expression "from and after the decease of my said wife.” Livingston v. Greene, 52 N. Y., 118; Bedell v. Guyon, 12 Hun, 396. The bequest was residuary. The circumstance that the principal might be reduced in the operation of the trust does not change the result Mitchell v. Knapp, 54 Hun, 500; 27 N. Y. State Rep., 604, and cases there referred to.

But suppose, as is claimed by defendants, the gift did not vest, but passed as undisposed of property, it would not go to the defendants, the present so-called heirs and next of kin. It would go to and vest in the heir and next of kin, according to the situation at the time of the death of the testator. Rose v. Clark, 8 Paige, 574; 2 Wms. Exrs., 6th Am. ed., 1591, note. The fact that the distributee died before the time of distribution would not affect the rights of his representatives.

It follows that the heirs or representatives of Walter T. Perry are entitled to the fund. .

But it is urged by the defendants that the plaintiff is not in a position to maintain this action. The court below passed upon the merits and did not, in terms, consider this question.

The claim of the defendants is, that if any one could bring the action, it must be the personal representative of Mrs. Yan Camp. Still her executor refused to bring it, and in such a case the beneficiary has a right, somewhat within the discretion of the court, to bring an action for the benefit of the estate. This discretion, so far as it was exercised by the trial court, was in favor of the maintenance of the action. This result should not be here disturbed. Assuming then the plaintiff has the same standing that the executor of Mrs. Yan Camp would have, the case of Wager v Wager, 89 N. Y., 161, 166, is authority for the maintenance of the action. This is on the assumption that Mrs Yan Camp succeeded to all the rights of her son. No point was made at the trial and is not here that there was any occasion for the appointment of an administrator de bonis non of the estate of the son in order to fully vest in the mother’s estate the rights of the son. She was the sole beneficiary of his estate.

The defendants further claim that the judgment obtained by Mrs. Yan Camp in 1868 is a bar. The court, at special term, held otherwise, and the defendants did not appeal. The plaintiff, in his notice of appeal, expressly excepted that provision in the judgment. We do not consider that question. The pendency of proceedings in surrogate’s court was not pleaded as a defense and is-not available here to the defendants.

It follows that the judgment should be reversed.

Judgment reversed and new trial ordered, costs to abide the-event.

Hardin, P. J., and Martin, J., concur.  