
    Barbara Miller, Resp’t, v. Frederick P. Gilbert et al., App’lts, et al., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1894.)
    
    1. Will—Construction.
    Where a gift is absolute and the time of payment only is postponed, the-gift vests at once.
    2. Same.
    In such case, a direction to sell and divide cannot be regarded as a gift to take effect at the death of the life-tenant, but rather a suggested mode of division in lieu of legal proceedings.
    Appeal from order of the general term of the city court of Brooklyn, which overruled the appellants’ exceptions and denied a motion for a new trial. Also appeal from an order amending the above order.
    
      William Sullivan and Hugh A. McTernan, for app’lts; F. M Dana, for resp’t; Edgar Whitlock, for resp’t, McClellan.
    
      
      Affirming 51 St. Rep. 132.
    
   Bartlett, J.

This is an appeal from an order of the general term of the city court of Brooklyn, denying a motion for a new trial made by defendants Frederick P. Gilbert et al.

Also an appeal from an order amending the above order.

This action was brought to partition certain real estate in the city of Brooklyn, of which Baphael Gilbert died seized, and involves the construction of his will.

The testator died June 6, 1863, leaving him surviving his widow and four sons, Philo, Wesley, Henry and Wilbur.

The will is holographic and. bears upon its face evidences of having been drawn by one wholly without legal training and of . very limited general education.

The clause of the will to be construed reads as follows, viz.:

“ Be it known by these premises, to all whom it may concern, that I, Raphael Gilbert, of the city of Brooklyn,-in the state of New York and of the United States of America, do give to my wife Maria on the day of my death a free and uncontrollable use and occupancy of my houses and lots situated No. 121 Prospect street, 151 York street and 335 Bridge street, as long as she shall continue my widow, but if she shall cease to be my widow by death, then the aforesaid houses and lots shall be sold and the moneys arising therefrom shall be equally divided among my children, viz.:.Philo Baker Gilbert, Wesley Carlo Gilbert, Henry Still Gilbert, Wilbur Fisk Gilbert or their heirs. But if she shall cease to be my widow by marriage, then the aforesaid houses and lots shall be sold, and one-half of the moneys arising therefrom-shall be hers, to be used for her benefit and comfort so long as she shall ‘live, and then it shall revert back to my children and be equally divided among them; and the other one-half of the moneys arising from the sale of the aforesaid houses and lots, shall be equally divided among my children as aforesaid.”

The sons Henry and Wesley survived their mother, and after her death Henry acquired Wesley’s share and owns one-half of the veal estate in dispute.

The son Wilbur survived the testator but predeceased his' mother, having in his lifetime conveyed one -quarter interest in the premises in question to the plaintiff, Barbara Miller.

The son Philo also survived the testator but died before his mother. During his life his alleged interest in one-quarter of the real estate was sold in bankruptcy proceedings and passed to the defendant Carrie G. McClellan.

The question now presented is, did the fee of this real estate vest in the four sons of testator at his death, or was there an equitable conversion into money and a bequest thereof to take effect on the death of the widow, thus vesting the shares of the deceased sons, Wilbur and Philo, in their children to the exclusion of plaintiff and the defendant Carrie G. McClellan?

The court below held the fee vested in testator’s four sons at the time of his death.

The heirs of the sons Philo and Wilbur appeal to this court.

The counsel for the appellant urges that there is an equitable conversion and that the bequest to the sons was contingent and not vested, because the gift is found in a direction to divide at a future time.

It has been often held that if futurity is annexed to the substance of the gift the vesting is suspended; but where the gift is absolute and the time of payment, only is postponed the gift is not suspended but vests at once. Smith v. Edwards, 88 N. Y. 103.

It is also a well-settled rule that if the language of the bequest is doubtful resort shall be had to that primary canon of construetian which holds that the intent of the testator collected from the entire will must prevail'; and that general rules adopted by the courts in aid of the interpretation of wills must give way where their application in any particular case would defeat the intention. Goebel v. Wolf 113 N. Y. 412; 23 St. Rep. 176; Ritch v. Hawxhurst, 114 N. Y. 512; 23 St. Rep. 919.

On reading testator’s will we are satisfied he intended to create a life estate in his wife and vest the fee at his death in his four sons.

It is true the fee is not disposed of in terms, but it is apparent from the general language of the will that the testator supposed he had vested the fee in his sons, and it was his intention to do so.

In the clause where he speaks of his widow ceasing to be such by marriage he says: “ The aforesaid houses and lots shall be sold, and one-half the moneys arising thereupon shall be hers, to be used for her benefit and comfort so long as she shall live, and then it shall revert back to my children and be equally divided among them.” 0

It may be fairly inferred from this language that the testator supposed the fee at the time of the sale would be in his sons.

The general scheme of the will is very clear and leads to the same result.

Dealing with his real estate, the testator evidently intended the widow was to have a life estate and the sons the fee; on the death of the widow, the real estate was to be sold and proceeds divided between the sons; if the widow married, a sale was directed and half the proceeds were divided at once between the sons, and the widow had the use of the other half for life and then principal reverted to the sons. The same disposition practically is made of the personal property.

The scheme of the will is consistent and clear, although the instrument is inartificially drawn. There is no equitable conversion in any event, but, even under the appellants’ construction, it is not contended there was conversion from the death of the testator, "but from the death of the widow, so the fee at testator’s death passed to the four sons.

It is also urged by the appellants’ counsel that the words “ or their heirs ” in the clause of the will under consideration disclose the intent to substitute a deceased son’s issue for the son himself in case the latter died at any time before the widow.

It is difficult to say what was in the mind of this illiterate testator when he employed these words; he may have improperly deemed them essential in framing an absolute devise to the sons. 2 R. S. p. 66, § 52.

It is quite inconceivable that he supposed the words created a substitutionary bequest or devise in the event of the death of a son before his mother, but it may more reasonably be assumed they were ignorantly used; it is a case where the court might well substitute “and” for “or.” Roome v. Phillips, 24 N. Y. 463; Jackson v. Blansham, 6 Johns. 56.

If these words are given the full force and effect claimed for them, they would fall within the rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, and that if such devisee survives the testator, he takes an absolute fee. Stokes v. Weston, 142 N. Y. 433; 59 St. Rep. 811, and cases cited.

The fee having passed to the sons at the testator’s death, as already intimated, the direction to sell and divide cannot be regarded as a gift to take effect at the death of the widow, but rather a suggested mode of division in lieu of legal proceedings.

The will does not disclose the intention to create a trust or a power in trust, and even fails to appoint an executor.

It is evident the testator intended the sales suggested by him should be made by his sons, or the widow and his sons, as the case might be.

The general principles controlling the case have been recently discussed and applied by this court. Matter of Tienken, 131 N. Y. 391; 43 St. Rep. 184.

The orders appealed from should be affirmed, with costs.

All concur. Orders affirmed.  