
    In the Matter of the Judicial Settlement of the Accounts of Jonathan M. Coolidge and Louis M. Brown, as Executors of the Last Will and Testament of George W. Lee, Deceased. Sarah J. Snyder and Others, Appellants, Respondents; Henry A. Howard, as Administrator, etc., of Nancy Holland, Deceased, Respondent, Appellant.
    
      Will—equitable conversion of real into personal property — residuary legatees held to take at the time 'designated for distribution and not at the time of actual distribution or when it was required by law.
    
    Oeorge W. Lee died May 7, 1901, leaving an estate valued at $300,000, upwards of §250,000 thereof consisting of personalty. By the 6th clause of his will he devised and bequeathed his residuary estate to trustees in trust to divide the same into four separate trust funds, one for the benefit of each of the following persons, viz., his brother, James Lee; his sister, Sarah Snyder; his sister, Nancy Holland, and his son, Forest T. Lee.
    The 6th clause also provided that the trust funds created for the benefit of the testator’s brother and of his two sisters were to be sufficient in amount to yield ■ each of the beneficiaries an annual income of §300, while the trust fund for the benefit of the son should include the balance of the residuary estate.
    The 7th clause of the will contained the following provision: “Any surplus net income arising from such trust fund during the life of the beneficiary (my brother or sister) over and above said sum of three hundred dollars (§300) annually shall, when ascertained, be added to the income of the trust fund to be designated for my said ^pn and shall be disposed of in the same manner as is hereinafter provided for the disposition of the income from said trust fund to be designated for my son.- Upon the death of the beneficiary (my brother or sister) for whom the trust fund shall have been designated, the' principal of said trust fund shall be added to the principal of the trust fund to be desig- • nated for my said son, and thereafter shall be held, used and disposed of by the said trustees in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son.”
    By the 8th clause of the will, the testator directed the executors to apply tó’ ' the use of his son, out of the income of the trust fund created for his benefit, a'sum not to exceed §1,500 annually. The clause further provides as follows: “ Any surplus net income arising during the life of my said son, from the trust fund designated for him, over and above what may be paid to my son, or applied to his use, as provided in this and the next succeeding paragraph, shall be paid over by the said trustees (at least annually, and oftener if they deem it advisable) to my next of kin, exclusive of said Forest T. Lee, to whom in such case I give and bequeath the same, to be divided between them (if more than one) in Shares between themselves according to the Statute of Distribution.”
    
      The 9th clause of the will provided: “I further authorize and empower the said, trustees (in case they shall at any time deem it advisable and for the best ' interests bf-'iny said son to do so) to transfer or pay over to -him, at any timé/úór.fróm time to time, "the whole or any portion of the -principal of the -said trust fund so designated for him; and in such case I give, devise and -bequeath to my said son, absolutely, so much of said trust fund as shall be so transferred " or.paid over to him by said trustees. Upon the death of my said son’, the-principal of said trust fund so designated for him (or so much, thereof as shall, not have been transferred to him), together with all income therefrom then in. the hands of the said trustees or uncollected, shall be transferred and paid over by the said trustees to my next of kin to be divided between them (if- . more than one) in shares between themselves according to the Statute- of -Distribution; and I give, devise and bequeath the same to such next of kin, accordingly. The provisions in this paragraph contained providing for the final disposition of the principal of the trust fund to be designated for m.y son; shall.be "construed to apply to and regulate the disposition of the principal of the trust funds to be designated for my brother and sisters, as such last-mentioned trust funds may from time to time be added to the trust fund designated for my son.” ' -
    The 11th and 12th clauses of the will provided as follows:
    ■ “Eleventh. I direct that the words ‘ trust fund’ or ‘ trust funds,’ as used, in.■ -this instrument, shall be construed to include real estate as well as personal property, and that the words ‘ next of kin,’ wherever used in this.instrument, shall be construed to mean my lawful descendants or descendant, if any there . -shall be, -to the exclusion of all my collateral relatives. I further direct that-no person who shall at the time of m.y death answer the description Of ‘ my next of kin' or my ‘ next of kin, exclusive of my son,’ shall be deemed, by reason of that fact, to have acquired any vested right to share in the distribution of any portion of my estate, but the phrases above quoted shall be con- " strued in each case as including only such persons as shall answer the description at the time of making the payment or distribution.
    -‘ Twelfth. I hereby expressly authorize and empower said executors and. - trustees to sell and convey and convert' into money any and all real estate of ■ which -I may die seized Or the owner, and to execute and deliver conveyances: .- thereof, subject, however, to the life estate devised by the ‘ second’ paragraph hereof.”
    The testator left no widow, and his son, Forest T. Lee, was his sole heir at law, and next of kin. The will was admitted to probate and letters testamentary were- > issued thereon-May 27, 1901. Forest T. Lee died intestate February 16, 1902, leaving no widow or descendants. If Forest T. Lee. had predeceased his. father the next of kin of the testator at the time of his death would have been. the brother and sisters for whom trust funds had’been created by the will and. the children of three deceased sisters.
    Nancy Holland, one of the testator’s sisters, died intestate March 25, 1902.” Thereafter,, on October 13, 1902, the testator’s brother, James Lee, died.
    
      Held, that the will did not create an equitable. conversion of the •testator’s .real-estate into personalty for the following reasons, viz., that the power of sale was discretionary and not mandatory; that each of the testator’s purposes, .could be carried out without such a conversion; that the will directed that the .words “trust fund” or “trust funds” “shall be construed to include real estate as well as personal property;” that the will expressly authorized the executors to “ retain and hold, as a part of said trust funds, any stocks, bonds, or other securities or investments whatever;" that the testator had, in creating-the trust for the son and in disposing of the remainder upon his death, used. the words “ to transfer,” as well as to “ pay over,” and “ devise ” as well as.' “ bequeath,” thus showing his intention that the trust fund should consist of real property as well as personal property, and that the authority given to the • trustees to allow the son to occupy the testator’s house, and the use of the word “ devise ” in the clause confirming any advance of principal made by~ the.trustees to the son were to the same effect;
    That the fact that the will directed the remainder to be divided “ in shares between themselves according to the Statute of Distribution,” did not. indicate an intention to effect an equitable conversion, but simply indicated that the! amount of the .shares was to be governed by the Statute of Distributions, whether the shares consisted of real or .personal property or both;
    That the next of kin entitled to take under the 9th clause of the will were to-be determined as' of the time when the testator directed the distribution to be-made, and not as of the time when the trustees should actually divide the estate or when they were required by law to divide the estate;
    That upon.the death of the testator’s son the residuary estate vested, subject to the three trusts and the payment of the debts and the specific legacies, in tlietestator’s next of kin described in the 9th clause of the will,-to wit, the.br.other and sisters of the testator who survived him and the children of the testator’s, three sisters who had predeceased him; ' . .
    That, so far as the share which vested in Haney Holland consisted of personal ■ property, it passed to her administrator.
    'Cross-appeals by Sarah J. Snyder and others, and by Henry A_ Howard, as administrator, etc., of Haney Holland, deceased, from, portions of a decree of the Surrogate’s Court of Warren county,,, entered in said Surrogate’s Court on the 8th day,of December, 1902, judicially settling the accounts of Jonathan M. Coolidge and another, as executors, etc., of George W. Lee, deceased.
    The questions presented upon this appeal involve for their deter-: mination the construction of the will of George W. Lee, who died May 7, 1901, being at the time a resident of Warren county. The: will was admitted to probate by the surrogate of that county May-27, 1901,-and letters'testamentary thereon were by him on that day-issued to Jonathan M. Coolidge and Louis M. Brown, the executors-, named in the will. The testator left an estate of over $300,000 in,; value. He had some real estate, but much the greater portion of his estate was personal property. In his will, after making various specific bequests of comparatively small amounts, and after devising in the 2d..paragraph thereof to his sister Haney Holland, during her life the use of the house where she resided, the. testator created séveral trust funds, and the questions to be determined here .relate to the'disposition of these trust funds upon the death of the beneficiaries thereof. These trusts were created in the 6,th paragraph of the will in the following language: ■“ All the rest and residue of my estate- whatever, both real and personal, and wherever ^situate, I give, devise and bequeath to the executors hereof in trust, however, to .use and dispose of the same as follows,, viz: The said executors (as trustees) shall at once divide said c rest and residue ’ into four separate -trust funds, and they shall thereupon designate one of such funds for my brother James Lee, another for my sister Sarah Snyder, another for my said sister Haney Holland, and the other for my said son Forest T. Lee. Each of the trust funds designated for my brother and sisters shall be of such an amount as shall be deemed by the said trustees amply sufficient to produce a net income of three hundred dollars ($300) per year. The trust fund' designated for my said son shall include all of such 1 rest and residue ’ which' shall remain after taking therefrom the amounts necessary to provide the three funds for my brother and sisters.”.
    The 7th and 8th paragraphs of the will described the Specific man-,’ ner in which the trustees should manage such trust funds, as follows:
    
      Seventh. The said trustees shall use and dispose of each of the trust funds which shall be designated for my brother or one of - my; sisters, as hereinbefore provided, and the income therefrom as-follows : They shall" invest said trust fund "and from time to time, reinvest the Same so as to keep it invested during the life of the beneficiary for whom it has been designated, and during; that time they; shall receive and collect the income therefrom, and out of the net income arising .therefrom-they shall pay t.o the beneficiary (my, brother .or sister) the sum-of three hundred dollars ($300) per year, which payments shall be made quarterly, and ■ shall be computed-from the time Of my death. Any surplus.net income arising from-such trust fund during the life of the beneficiary (my brother or sis-; ter)-over and above said sum of three hundred dollars ($30Q) annually shall, when ascertained, be added to the income of the trust fund to be designated for my said son and shall be disposed of in the same manner as is hereinafter provided for the disposition of the income from said trust fund to be designated for my son. Upon the death of the beneficiary (my brother or sister) for whom the trust fund shall have been designated, the principal of said trust fund shall be added to the principal of the trust fund to be designated for my said son, and thereafter shall be held, used and disposed-of by the said trustees in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son.
    . “ Eighth. Subject to the provisions contained in the following (Ninth) paragraph hereof, the said trustees shall use and dispose of the trust fund which shall be designated for my said son Forest T.. Lee (in case my said son shall survive me) and the income therefrom, as follows: They shall invest said trust fund¿ and from time. to. time reinvest the same, so as to keep it invested during the life of my said son, and during that time they shall receive and collect-the income therefrom, and out of the net income arising therefrom, they shall apply to the use of my said- son, Forest T. Lee, the' sum of six hundred dollars ($600) per year, computing from the: time of my.death. And in case the said trustees shall deem it advisable and for the best interests of my said son, I authorize them to apply to his use, from said net income such additional sum as they may deem advisable, not exceeding in any one year the sum of nine hundred dollars ($900) in addition to the sum of six hundred dollars ($600) hereinbefore mentioned. Any surplus net income arising during the life of my said son, from the trust fund designated for him, over and above what may be paid to my son, .or applied to his use, as provided in this and the next succeeding paragraph, shall be paid over by the said trustees (at least annually, and oftener if they deem it advisable) to my next of kin, exclusive of said Forest T. Lee, to whom in such case I give and bequeath the same, to ■ be divided between, them (if more than one) in shares between themselves according to the statute of distribution. The words 1 net income ’ as used in this paragraph, shall be construed to include such surplus income arising from the other trust funds hereinbefore mentioned as shall be added to the income of the trust fund ■ to be designated for my said son, pursuant to the provisions of the preceding." (Seventh) paragraph hereof.”
    ' The 9th paragraph Of -the will contains the following :
    “ Ninth. In addition to the foregoing provisions in favor of my said son- I hereby authorize the -said'.trustees (in case " they shall-, deem it-advisable and-for the best .interests of my said" son) to allow' him to occupy, for his residence, free of rent, the house and lot: where I now reside, at the1 corner of Warren -and 'Church streets, -in said "Village of -Glens Falls, and to use the furniture and other-chattel -propérty (including -horse's, carriages, -&c.) belonging on said lot; the said trustees paying from the net income mentioned in the-last preceding paragraph --the taxes, insurance and repairs on said house and lot/ in -addition to applying One thousand five hundred dollars ($1,500) of such net income to the use of my said son,- as.therein provided. I ■ further authorize and empower the said trustees-(in case they shall at any time deem it advisable and for the best-interests of my said son to do so) to transfer or pay over to him, at-any time, or from time to time, the whole or any portion of the-principal of the said trust fund "so designated for him ; and in such-case 1 give, devise and bequeath to my said son, absolutely, so much, of said trust fund as "shall be so transferred or'p.aid over .to him by-said trustees. Upon the death of my said son, the principal of said' trust fund so designated for him,.(or-so much thereof as shall" not, have been transferred to him) together with all income therefrom-then in the hands of the said trustees of uncollected, shall be transferred and paid Over by the said trustees to my next .of kin to b'e* divided between them (if more than' one) in. shares between themselves, according to the statute of distribution; and I give, devise and bequeath the same to such next of kin accordingly. The provisions; in this paragraph contained providing for the final disposition of the principal of the trust fund to be designated for my son, shall be construed to apply to and regulate the disposition of the principal of-' the trust funds to be designated for my brother and sisters,. as; such last-mentioned trust funds may from time to timé be added tú the "trust fund designated for my son.”
    In the IGtli paragraph the testator, in tlie event that his son Forest T. Lee did not survive him, gave, devised and bequeathed to-his next of kin to be divided between them in shares according to- • the Statute of Distributions* the portion of his estate which, if his son had survived him, would have constituted the trust fund provided for him.
    The 11th and'-12 th paragraphs - are as follows: .
    “ Eleventh. I direct that filie words ‘ trust fund ’ "or ‘ trust funds,’ as used in this instrument, shall be construed to include real estate as well as- personal property, and that the words .‘next of kin,’ wherever used in this instrument, shall be construed to mean my lawful descendants- or descendant, if any there shall be, to the •exclusion of all my collateral relatives. I further direct that no person who shall at-the time of my death answer the description of ■f my next of kin ’ or my ‘ next of kin exclusive of my son,’ shall be deemed, by reason of that fact, to have acquired any vested right to share in the distribution-of any portion of my estate; but "the phrases above quoted shall be construed in each case as including only such persons as shall answer the description at the time of making the payment or distribution.
    “ Twelfth. I hereby expressly authorize and empower said ■executors and trustees to sell and convey and convert into money "any and all real estate,of which I may die seized or the owner, and to execute and deliver conveyances thereof, subject, however, to the life estate devised by the ‘ second ’ paragraph hereof.”
    The testator left no widow, and left as his only heir at law" and next of kin his son, Forest T. Lee. The son died intestate February 16, 1902, leaving no descendant and no widow. If Forest T. Lee had predeceased his father, the testator, the -next of kin of the father at the time of his death would have been his brother, James Lee, two sisters, Sarah J. Snyder and Haney Holland, the three persons named in the will* other than the son, for .whom trust funds were created, and the children of three deceased sisters. Haney Holland died intestate March 25, 1902, leaving a husband her surviving and leaving no descendants. At the time of her death her only heirs at law and next of kin were the persons above specified (except herself) as the persons who were the heirs at law and next of kin of said George W. Lee, if his son Forest T. Lee were dead.
    Letters of administration on the estate of Haney Holland were - issued to Henry A. Howard by the surrogate of Warren county June 11, 1902. • During the pendency of this proceeding .for. an ' accounting, and on October 13, 1902, the testator’s brother, James • Lee, the beneficiary of one of the trust funds, died, leaving a will, and his executors and next of kin have been brought in as-parties-to this proceeding.
    The administrator of Nancy Holland, contends that he is entitled as such administrator to one-sixth of the entire residuary estate left by ' George W. Lee, on the theory that the will operated to effect an • equitable conversion of the real estate of the testator into personalty and that-Nancy Holland acquired a vested interest, in said residuary estate on the death of the testator’s son Forest. The next 'of kin who are appellants contend that the administrator of Nancy Holland is entitled to no share whatever in the estate, on the grounds, ’first,, that the will did not effect.an equitable, conversion of the real : estate, so that the administrator was not entitled to any share in the • realty; and, second, that as the son Forest T. Lee and the sister . Nancy Holland both died within one year after the death of the ' testator, and before any distribution of the estate had been made or could be made under the law, said administrator was entitled to no share'in the personalty because of the provision, of the 11th para- • graph of the will providing that only those should be entitled tq • share in the testator’s estate who answered the description of the ■ next of kin at the time of the payment or distribution,. None of the , real estate of the testator was sold by his executors prior to the death of Nancy Holland, but some of it has been sold by them- since.
    The surrogate decided: .
    1, That upon the death of Forest T. Lee the persons then living who answered the description of next of kin of George W, Lee acquired vested rights to. share in the division of the personal estate in the hands of the executors of the will of said George W. Lee, forming a part of the trust fund directed in the will to be desig- - nated for said Forest T.- Lee, and also in the real property which was devised by said will in shares between themselves according to the Statute of Distributions, ■ • -
    2. That said Henry A. Howard, as administrator, etc., of Nancy Holland, deceased, is entitled to receive upon the distribution of the estate the same share of the proceeds of the personal estate which would have been distributable to said Nancy Holland if she had ■ survived until the distribution was actually made.
    
      3. That the will did not work an equitable conversion of real property into personal property, and upon the death of Haney Holland, intestate, her interest in the real estate descended to her heirs at law (subject to the power of sale given to the executors of the will of George W, Lee), and upon the death of James Lee his interest in such real estate passed to the devisees under his will, subject to such power of sale.
    Also that the administrator of the estate of Haney Holland was entitled to one-sixth of the principal of the trust fund set aside for said Haney Holland and also one-sixth of the principal of the trust fund set aside for James Lee. -
    The decree entered is based upon such decision,
    The administrator of Haney Holland has appealed from those portions of the surrogate’s decision and decree that find that the will did not work an equitable conversion of the real estate into personal property, and Sarah J. Snyder and the other next of kin have appealed from those portions of the decision and decree which find that the administrator of Haney Holland is entitled to a share in the trust funds created for Forest T. Lee, for Haney Holland and for James Lee.
    
      Edward M. Angelí, for Sarah J. Snyder and others, appellants and respondents.
    
      G. H. Sturges, for Henry A. Howard, as administrator, etc.,, respondent and appellant.
   Chester, J.:

Two questions only need, to be discussed in determining this appeal: First, whether or not the will operated as an equitable conversion of the testator’s real estate into personalty. Second, whether or not upon the death of the testator’s son, Forest T. Lee, Haney Holland and the other persons then living who answered the description of next of kin of the testator, acquired vested rights to share in the distribution of his estate.

First. There is no dispute here as to the law relating to equitable conversion, but the trouble arises in applying the law to the facts in this case. The law has been settled by a long' line of authorities that where, as here, the power of sale given to the executors is diseretionary and not mandatory, conversion- will not be decreed'unless there is an absolute necessity-td sell in order to carry out the scheme . -of the. wil-Lor unless the intention that" there should be a. sale is-to ■ be foundin the-wh.ole scope and tenor of • the will.; It was said in . Matter, of.Tatum, (169 H. Y. 518), which was a case where the power. giv.en' to sell the real estate was. discretionary only, that “ unless the purpose of the -testator will fail, -without a conversion, . equity-will not presume it. There should be an-implication, of a - direction to convert, so. unequivocal -and so strong ás to leave no' substantial doubt in the "mind, * * "x" . Indeed, conversion, to he decreed, must be so necessary, as that, without it, the provisions, qf the will would b,e rendered unreasonable" and incapable óf. a just and- an effective operation.”

" In the case, at bar the testator owned at the time of' his death his residence' property in the village of Glens' Falls, which by- the: 9th paragraph of his will he authorized his trustees to allow his son to ■occupy for his residence free of rent. He also owned another house .and lot near such village, the use of which he devised - to liis sister Haney Holland during her life by the' 2d paragraph of his will; and- he also owned some half dozen other pieces of real estate, part of which were vacant: All of this real estate went into the trust created by the 6th paragraph of the will and only, one piece has been ■sold by the trustees. By the 11th paragraph the testator directs that, the Words “ trust fund ” or “ trust funds,” as used “ shall be construed to include real estate as well as personal property.” And by the 13th paragraph lie expressly authorizes his trustees to retain and hold, as a part of said trust funds, any stocks, bonds or other securi- • ties or investments'whatever,” which he may have at the time of -his death. This language is broad enough to cover' his investments in real estate. The testator left upwards of $250,000 of personal property. This was ample to pay all debts and expenses. of administration, as well as all the specific legacies, and also to provide capital for all the trusts created in the will, outside of the trust created for the benefit of the son and to leave for the capital of the trust - so created not less than $200,000-personal property besides .the real estate. Thus far each of' the purposes of the testator, as expressed in his will, could be fully carried out without any conversion of -the'real estate into personalty, and without the exercise of the power of sale given to the executors and trustees. I think, also, the further scheme of the will, that is, the distribution of the property, provided for in the 9th paragraph, upon the death of the son, between the next of kin in that paragraph mentioned, can also be carried out without such a conversion, and it would' seem, also, from the language there used, that the testator had such a distribution in his mind. He there provides that upon the death of his son the principal of the trust fund designated for him, together with all income therefrom then in the hands of the trustees or uncollected, “ shall be transferred and paid over by the said trustees to my next of kin, to be divided between them * * * in shares between themselves, according to the Statute of Distribution; and I give, devise and bequeath the same to such next of kin accordingly.” The use of the word “ transferred ” in addition to the words “ pay over,” and the use of the word “ devise,” indicate very clearly that the testator contemplated that at the time of the distribution there would be real estate to be transferred to those entitled thereto, and he, therefore, devised the same accordingly. It is urged by the. administrator of Mrs. Holland, however, that because the division under these paragraphs was to be in shares between themselves, according to the Statute of. Distribution,” that indicated an intention that the fund should be wholly personal before being distributed. I think, on the contrary, when viewed in the light of the entire will, it only indicates that the amount of the shares is to be governed by the Statute of Distributions (Code Civ. Proe. § 2732), whether those shares be personal property or real estate, or both.

The same reasoning will apply to the trust fund created for -either of the beneficiaries thereof, other than the son, for the testator provides in the 7th paragraph that “upon the death of the beneficiary (my brother or sister) for whom the trust fund shall have been designated, the principal of said trust fund shall be added to the principal of the trust fund to be designated for my said son, and thereafter shall be held, used and disposed of by the said trustees in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son.”

That the testator did not intend a conversion is also apparent in the 9th paragraph where the trustees are given authority to allow the son. to occupy the testator’s house and lot as a residence free of: rent, and where also- the trustees are authorized in their discretion- “ to transfer or pay over to him (that is, the son) at any time, or from time to time, the whole or any portion of the principal of the said trust fund so designated for him; and in such case I give,-devise and bequeath to my said son, absolutely, so much of said trust fund as shall be so transferred or paid over to him by said trustees.’ Here again the use of the words “to transfer” as well as the words to “ pay over ” and the word “ devise ” as well as the word “bequeath” shows an intention to give authority to the trustees to-pass the title of real estate as well as personal property to the son. Indeed throughout the entire will the testator lias carefully observed the distinction between the meaning of the words “ bequeath ” and “ devise.” It is apparent from the context that his use of these words either separately, or when coupled together has not been a careless or accidental one, but had been to accomplish an intelligent purpose. That being so, the use of both these words not only in the creation of the trust fund for the son, but in disposing of the remainder upon his death, shows very clearly that it was his intention that such trust fund should consist of both real and personal property and that he had in mind that the trustees -might hold the residuary estate in the form in which he left it and at the terminar tion of the trust that they would transfer it, or pay it over, in kind, to the remaindermen.

- I think for these reasons that this will does not show that the testator intended by it to work an equitable conversion of real estate into personalty, nor is there any necessity for such a conversion to carry out the will, and, therefore, the decision of the surrogate that the will did not work such a conversion was right.

Second. The contention of Sarah J. Snyder and the other surviving next of kin, that the administrator of the estate of Haney Holland is not entitled to share in the distribution of the trust funds created by the will, is based upon the 11th paragraph of the will, where it is directed that “ no person who shall at the time of my death answer the description of my next of kin,’ or my next of kin exclusive of my son,’ shall be deemed, by reason of that fact, to have acquired any vested right to share in. the distribution of any portion of my estate ; but the phrases above quoted shall be construed in each case as including only such persons as shall answer the description at the time of making the payment or distribution.” . As the son Forest died February 16, 1902, and the sister Nancy Holland March 25, 1902, no distribution of the estate had been made prior to the death of Mrs. Holland,. nor prior to the death of the brother James Lee, who died October 9, 1902, while the proceeding for an accounting was pending. The only surviving beneficiary of a trust fund is the sister, Sarah J. Snyder. The surviving next of kin claim that the testator’s intent, as shown by the 11th paragraph of the will,, above quoted, was that no estate should vest in his next of kin until the time of making distribution, and that any one who died prior to the time of distribution should not. share in it. , It is argued that the time of making distribution referred to is the time provided by law for the distribution, which in this case would be at the expiration of one year after letters were issued upon the testator’s estate, regardless of the time when the death of Forest, the son, should occur. It seems quite clear, however, from the will itself that this con-. tention cannot be upheld. It is true that the testator has provided in the 11th paragraph that there should be no vesting of his estate in these next of kin at the time of his death, but he has clearly fixed the time of the vesting of his residuary estate in such next of kin to be at the time of the death of his son, for he provides in the 9th paragraph, that“ upon the death of my said son, the principal of said trust fund so designated for him * * * shall be transferred and paid over by the said trustees to my next of kin, to be divided between them * * * in shares between themselves, according to the Statute of Distribution; and I give, devise and bequeath the same to such next of kin accordingly.” Here is a direct gift to the next of kin, to take effect at the time of the death of the son.- It cannot be that the testator by saying in the 11th paragraph that his next of kin should include “ only such persons as shall answer the description at the time of making the payment or distribution” meant at the time when his trustees should physically divide his estate among those entitled thereto, or at the time when under the law such division should be made, but it is moré reasonable that he meant at the time when he by the terms of his will had directed the payment or distribution to be made among them. If,, as is claimed, he meant when the trustees should divide, or when under the law they were required.1 to divide, such interpretation would make the residuary clause invalid, for there would then be an, unlawful suspension of the power of alienation that is, a suspension based upon a time limit and not upon two lives in being, and it cannot be presumed that he intened to do that.

In each of the cases of Manice v. Manice (43 N. Y. 303, 367) and Shipman v. Rollins (98 id. 311, 325) the question was presented under facts quite similar to those existing herd, whether the estate vested at the time appointed by the testator for its distribution or at the time the actual distribution was made, and it was ■ held in each case that there was a vesting at the time fixed by the ■ testator for the division, and I think that principle must apply here..

Upon the death of the son, therefore, the residue of the estate vested in the next of kin of the testator described in the 9th- paragraph of his will, sub ject, of course, to the three trusts and the payment of the three annuities provided for therein, and subject to the expenses of administration, all the debts and the specific ■ legacies having been paid.

The testator, in addition to the brother and the two sisters who survived him and who were trust beneficiaries under his will, left as ■ next of kin, after the death of his son, the children of three .sisters who died before he did, so that upon a division there are six shares to be provided for, and one of these shares vested in Nancy Holland, and so far as it consisted of personal property passes to her administrator.

The decree should be affirmed, without costs.

All concurred.

Decree affirmed, without costs.

Sasjes DETERMINED IN THE FOURTH DEPARTMENT nr the APPELLATE DIVISION,' %xxvlzt 1903.  