
    Christian Charles Haug, Individually and as One of the Executors of and Trustees Named in the Last Will and Testament of John C. Haug, Deceased, Respondent, v. Henry J. Schumacher and Frederick Ludwig Haug, Individually and as Executors of and Trustees Named in the Last Will and Testament of John C. Haug, Deceased, and Others, Appellants.
    
      Will —- construction of a will giving a life estate to a widow and to two sons with remainder over to grandchildren.
    
    The will of a testator provided as follows: “Seventh. I give and bequeath the equal one-third part of all the income, rents, issues and profits of all the rest, residue and remainder of my lands and real estate of what nature and kind soever, and whatever the same may be at the time of my death, to my wife, Walburga Haug, for and during the term of her natural life, or so long as she shall remain my widow and not marry again, in lieu of dower; the .remaining equal two-thirds of the income, rents, issues and profits of my said lands and real estate I give and bequeath to my two sons; Frederick Ludwig Haug and Christian Charles Haug, to be divided among them equally, share and share alike.
    
      “ Eighth. Immediately upon the death of my said wife or her remarriage, whichever event shall first happen, I give and bequeath all the income, rents, issues and profits of my said lands and real estate to my two sons, Frederick Ludwig Haug and Christian Charles Haug, to be divided among them equally, share and share alike.
    
      “Ninth. Immediately after the death of my said wife and the death of my said two sons, Frederick Ludwig Haug and Christian Charles Haug, I give, devise and bequeath all of my said estate, real and personal, to all of my grandchildren, to be divided among them equally, share and share alike, per capita., not per stirpes.”
    
    At the time of the testator’s death there were living his widow, his son, Christian Charles Haug, who had been married eighteen years but had no children, and Frederick Ludwig Haug, who had four children, the youngest two years of age, and John Walther Hildenbrand, the only son of a deceased daughter of the testator. The wives of both Christian and Frederick were living.
    
      Held, that the testator intended that his real estate should remain intact and the income be divided into three equal parts payable in equal shares to the widow and the two sons, and that when the widow should die or remarry, her share of the income should be divided equally between the two sons; and that upon the death of either of the sons, his interest in the estate passed directly to the grandchilden instead of to the surviving brother;
    That the will created but two life estates, namely, one in the widow and the other in the testator’s two sons, and that the grandchildren in being at the time of the testator’s death took a vested interest in the remainder;
    That, as there were at all times persons in being who could convey an absolute estate in possession, there was no suspension of the power of alienation;
    That it was not necessary to imply a trust in order to give effect to the provisions of the will;
    That, in view of the provisions of the 9t.h clause, which included both realty and personalty, it was apparent that the testator intended in the 7th and 8th clauses to dispose of both his real and personal property, and that it was competent for the court to give effect to this intention by amending the language of the will.
    
      Qucere, as to the rights of the grandchildren born after the testator’s death.
    Appeal by the defendants, Henry J. Schmuacher and another, individually and as executors of and trustees named in the last will and testament of John 0. Haug, deceased, and others, from the following portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of Hovember, 1899, upon the decision of the court rendered after a trial at the Hew York Special Term construing the last will and testament of John C. Haug, deceased, viz.:
    1. They appeal from that part or paragraph of said judgment numbered VII, which decides or holds that the testator, John C. Haug, died intestate as to his residuary personal property, and provides for the distribution of the same, and they appeal from each and every part of said paragraph of said judgment numbered VII.
    2. They appeal from such parts of the paragraph of said judgment numbered IX as decide or hold that the several remainders in the real property pass, on the determination of the several life estates, to the testator’s grandchildren living at the death of the life tenants respectively, and are not vested absolutely in the grandchildren of the testator who were living at the time of the death of said testator.
    Also an appeal by the defendant, John Walther Hildenbrand by his guardian ad litem, William H. Steinkamp, from so much of said judgment as is contained in paragraph IX thereof.
    This appeal was transferred from the first department, to the second department.
    
      Alfred G. Reeves, R. G. Babbage and Abel Crools [A. Oldrin Salter with them on the brief], for the appellants.
    
      E. Gaston Higginbotham, for the respondent.
   Woodward, J.:

This action was brought for the purpose of construing the last will and testament of John C. Haug, deceased, which was duly admitted to probate as a will of both real and personal property. There is no dispute as to the 1st, 2d, 3d, 4th and 5th clauses, and it is conceded by all parties that the 6th clause is void because it undertakes to suspend the power of alienation for a period beyond the limits fixed by the statutes. It is, however, conceded that the 6tli clause is not a material element of the will, and that it may be dropped from'consideration, except in so far as it has a bearing upon the question of the testator’s intention. This leaves the Jth, 8th, 9tli and 10th clauses to be construed, the important questions for the most part arising under the 9th clause, the learned court below holding that the future estates provided for in that clause were contingent, or at least not absolutely vested in persons in being at the time of testator’s death, so that decedent died intestate as to his residuary personalty. From the judgment entered upon this construction of the will appeal comes to this court.

So much of the will as is necessary to be here considered reads as follows:

Seventh. I give and bequeath the equal one-tliird part of all the income, rents, issues and profits of all the rest, residue and remainder of my lands and real estate of what nature and kind soever, and whatever the same may be at the time of my death, to my wife, Walburga Haug, for and during the term of her natural life, or so long as she shall remain my widow and not marry again, in lieu of dower; the remaining equal two-thirds of the income, rents, issues and profits of my said lands and real estate I give and bequeath to my two sons, Frederick Ludwig Haug and Christian Charles Haug, to be divided among them equally, share and share alike.
“ Eighth. Immediately upon the death of my said wife or her remarriage, whichever event shall first happen, I give and bequeath all the income, rents, issues and profits of my said lands and real estate to my two sons, Frederick Ludwig Haug and Christian Charles Haug, to be divided among them equally, share and share alike.
Ninth. Immediately after the death of my said wife and the death of my said two sons, Frederick Ludwig Haug and Christian Charles Haug, I give, devise and bequeath all of my said estate, real and personal, to all of my grandchildren, to be divided among them equally, share and share alike, per capita, not per stirpes.
Tenth. I hereby authorize and empower my executors to rebuild any of the buildings now standing upon any of my lands, and which may become destroyed or dilapidated by fire or otherwise, and to use and "employ any moneys or funds that may be in their hands belonging to my estate for the purpose of such rebuilding.
“ Lastly. I nominate, constitute and appoint my turn sons, Frederick Ludwig Haug and Christian Charles Haug, and my friend,, Henry J". Schumacher, executors of this my last Will and Testament; should the said Henry J. Schumacher die before the final settlement of my estate, then immediately upon his death I nominate, constitute and appoint his brother, Samuel Schumacher, to be executor in his place and stead.”

Having in mind that fundamental rule in the construction of "wills that the intent of the testator must be sought for and followed in so far as it does not run counter to the law’s of the State, it is important to consider the scheme which the testator evidently had in mind, and, in so far as possible, to give effect to that scheme. It is no part of the duty of the court to be astute in discovering technical defects in language, or to give forced construction to that which is used, but rather to seek to harmonize the language with the intent of the testator, which must always be presumed to be the disposition of all his property. That is the object of making a will, and the courts will ever seek to fulfill the purpose of the testator. At the time of the death of John C. llaug, whose last will and testament is now before this court, there were living his widow, Walburga Hang, defendant; Christian Charles Hang, plaintiff,.who has been married about eighteen years, but who was without children though his wife is still living; Frederick Ludwig Hang, defendant, who had four children, the youngest two years of age, his wife still living, and John Walther Hildenbrand, defendant, who is the only son of the testator’s deceased daughter, Louisa Hildenbrand. It is apparent, from,a reading of the will, that the testator intended to keep his real estate as the basis of a revenue, which should be divided into three equal parts, one to go to his widow during her natural lifetime, or until she should remarry, in either of which events the revenue was to be divided equally between his two sons, and when they should die the entire estate, both real and personal, was to pass to all the testator’s grandchildren per capita, not per stirpes. The 6th clause of the will, which directed that “ none of my real estate shall be sold until after the death of my said wife and my two sons,” is undoubtedly contrary to law (Real Prop. Law, Laws of 1896, chap. 547, § 32), but as this portion of the will is not essential to the carrying out of the substantial will of the testator, it need not be further considered.

In the view we take of this question there is no suspension of the power of alienation ; there are persons in being who may convey an absolute fee in possession, and there are only two life estates intervening between the testator and his grandchildren. The rule is well settled in this State that a remainder is not to be considered contingent in any case where, consistently with the intention of the testator, it may be.construed as being vested. Words or phrases denoting time, such as “when,” “then,” and “from and after,” in a devise of a remainder, limited upon a particular estate determinable on an event which must necessarily happen, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of its vesting. (Hersee v. Simpson, 154 N. Y. 496, 500, and cases cited.) Moreover, the general policy of the law favors a construction which includes the vesting of estates and consequent certainty in respect to the title to property, and which prevents the disinheritance of the issue of a remainderman who may die during the existence of the precedent estate. This principle is based upon the idea that, in the absence of express words, it cannot be supposed that such was the intent. (Hersee v. Simpson, supra.) It seems clear to us that the testator intended that his real estate should remain intact so long as it produced the shares of income provided in the will, and that when the widow should die or remarry, the share which had been provided for her use should be divided equally between the two sons, while upon the death of either of the sons, his interest in the estate passed directly to the grandchildren instead of to the surviving brother. (See Vanderpoel v. Loew, 112 N. Y. 167, 178,179.) There were two life estates created by the will; one of these was to the widow, the other to the sons of the testator, and the grandchildren in being at the time of testator’s death took a vested interest in the remainders. On the death of the widow and either one of the sons, the grandchildren of the testator who were in being at the time of the testator’s death would come into the possession of one-half of the estate, and upon the death of the remaining son the other half of the estate would come into the possession of the grandchildren. While it is possible, under the terms of the will, that after-born grandchildren might have rights in the distribution of the estate, there can be no reasonable doubt that it was the intention of the testator to give his grandchildren a vested interest in his estate, and that the infant defendants in this action came into the legal right to share in the distribution of the testator’s estate at the moment of his death, the time of its enjoyment to depend upon contingencies which were certain to happen.

This being the legal effect of the will, it follows that there are, and at all times have, been, persons in being who had the absolute power of alienation, and the will, in so far as it is necessary for the substantial carrying out of the intent of the testator, is not, therefore, in conflict with the provisions of the Real Property Law. “Assuming, for tlie purposes of this case,” say the court in Matter of Brown (154 N. Y. 313, 326), “ that, at the time of the execution of the will, the gift, to the grandchildren was to a class, it does not necessarily follow that, their estates did not vest as tenants in common upon the decease of the testator, for, in the absence of a different intention disclosed in. the will, the class will be ascertained and determined as of the death, of the testator.” Quoting Schouler.on Wills (§ 529): “Our law,, instead of supposing that a gift to objects thus brought togetliershould include naturally all of that class who may fulfil the description at any time, presumes rather that the testator intended the-class to be ascertained upon his death, and neither earlier nor later. Hence a devise or bequest to the children of A., or of the-testator, means prima facie to those of that class in existence at the testator’s death, provided there be any at all to answer that description ; and this rule extends to grandchildren, issue, brothers,, nephews and cousins.” In section 530 the same authority continues: “Hence the English rule, confirmed by many American, precedents, that the devise or bequest of a corjous or aggregate-fund to children as a class, where the gift is not immediate, vests in all the children in existence at the testator’s death, but so as to open and let in children who may come into existence afterwards, at any time before the fund is distributable. And this rule of construction, like the former one, extends its favor to grandchildren, issue, brothers, nephews and cousins.” Jarman on Wills (Yol. 2 [6th ed.] 168) lays down the same rule, and the law upon this question-is too well established to need further citation of authority! (Matter of Brown, supra, and cases there cited.)

There is no ex23ress trust created by the will giving the title of the-realty or the 2)ersoualty to the executors, and as all the beneficial 2)ui’2)oses of the will may be effectuated without it, there is no reason to imply a- trust. (Greene v. Greene, 125 N. Y. 506.) Holding, as we do, that the grandchildren took a vested interest in the estate at the death of testator, we are of opinion that there were at - all times 2)ersons in being who had the absolute ownership of the-2)ersonalty; that within the authority of Sawyer v. Cubby (146 N. Y. 192, 196) there was no time when a good title in 2>resent possession might not have been given to the legacy and the property covered by it. It is .only necessary, then, to give complete practical effect to the will of the testator to read into the 7th and 8tli clauses provisions in harmony with the 9tli clause, and not inconsistent with the language used. We think the testator, in the 7th and 8th clauses, intended to dispose of both his real and personal' property. The language is: “I give and bequeath the equal one-third part of all the income, rents, issues and profits of all the rest, residue and remainder of my lands and real estate, of what nature and kind soever and whatever the same may be at the time of my death, to my wdfe, Walburga Haug,” etc. This language is most comprehensive if the testator intended no more than a disposition of the income of his real estate; it is language usually employed in disposing of the entire estate, and in view of the provisions of the 9tli clause, in which the testator gives, devises and bequeaths “all of my said estate, real and personal, to all of my grandchildren,” to be divided share and share alike, we reach the conclusion that the testator intended to dispose of the income of all his property, both real and personal, during the lives of his wife and the two sons, with remainders over to the grandchildren, who took vested interests at the time of his death, and who will come into the enjoyment of one-lialf of the property upon the death of the widow or her remarriage, and the death of either of the sons, while the other half will go to the grandchildren upon the death of the other sou. It is within the scope of the powers of this court to amend the language of the will for the purpose of giving effect to the intent of the testator (Roe v. Vingut, 117 N. Y. 204, 214); and as it is the duty of this court to give to the will the construction which presumes that the testator intended to dispose of his entire property (Clark v. Cammann, 160 N. Y. 315, 324), we have arrived at the conclusion that the executors should be directed to give this effect to the will.

The judgment appealed from should be modified in accordance with this opinion, and as so modified should be affirmed.

All concurred, except Bartlett, J., absent.

Judgment modified in accordance with the opinion of Woodward, J., and as modified affirmed, costs to all parties payable out of the estate.  