
    Henry R. Kunhardt, as Substituted Trustee under the Last Will and Testament of Wheaton Bradish, Deceased, Plaintiff, v. Harriet Bradish et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1902.)
    Vesting — When immediate under a direction “ to pay ” in the future.
    The rule, that where the only gift of a fund is found in a testamentary direction to executors to “ assign and pay ” at a future time vesting, is postponed until payment, will not defeat a vesting at the death of the testator where the postponement of payment is for the convenience of the estate only.
    Action for the construction of a will.
    Redfield, Redfield & Lydon,for plaintiff.
    Lockwood & Hill, for defendants.
   Scott, J.

This action is brought for the purpose of obtaining a judicial construction of the sixth clause of the will of Wheaton Bradish, deceased, who died in 1862, leaving a widow, Emily Bradish, and three daughters, Harriet Bradish, Eliza Smith and Catherine Trenor Kunhardt, his only heirs-at-law and next of kin. The widow died some years later, leaving a son by a prior marriage, to whom she bequeathed all her property. This son died intestate, leaving a widow, Almina A. Proctor, and a daughter, Emily Boylan, both defendants herein. Of the children of "Wheaton Bradish, Harriet is still living and is an insane person. The second daughter, Eliza Smith, died soon after her father, and before his widow, leaving a husband and a son, both' defendants herein. The third daughter, Catherine Trenor Kunhardt, died in 1901, and her executors are defendants herein. The sixth clause of the will, of which a construction is sought, after reciting that the testator will be entitled to the sum of £13,000 sterling on the death of a brother, bequeathes to his executors out of such fund the sum of £4,500 in trust, to invest the same, and during the life of my daughter Harriet Bradish apply the income (and in their discretion any portion or portions of the principal thereof)' to her use so far as may be necessary or desirable for her greatest comfort, and secondly to the use of my said- two daughters Eliza and Catherine Trenor, in equal shares; and upon the decease of my said daughter Harriet to assign and pay the remaining principal and unexpended income of the said fund to my said two daughters Eliza and Catherine Trenor in equal shares, and the residue of said annuities (meaning the £13,000) over and above all said sum of £4,500 I give and bequeath to my said two daughters Eliza and Catherine Trenor, in equal shares to their own use respectively.” The question suggested by this clause is whether the testator’s two daughters, Eliza and Catherine Trenor, severally acquired on his death a vested interest in and to an equal moiety of the principal sum of £4,500 and the surplus income derived therefrom, and hence whether, in view of Harriet’s survivorship of her two sisters, the said fund and surplus income and accumulations of interest pass to the representatives of'said sisters, or whether, as to the remainder of said fund, after the death of Harriet, the testator died intestate. In the one case the representative of the deceased daughters will take the whole fund and all the surplus and accumulated income; in the other case, one-third of the fund will pass to the widow and daughter of the son of testator’s widow by a former marriage. The doubt in the case arises from the existence of the general rule that, where the only gift of a fund is contained in a direction to executors to pay and divide at a future time, the vesting is postponed until the time shall arrive when the payment and division is to be made. The rule is, of course, well recognized, but it is not inflexible, and, as was said by Judge Andrews, in Campbell v. Stokes, 142 N. Y. 29: It is a rule for ascertaining the real intention of a testator and not for defeating it.” Beading the sixth clause of the testator’s will, in the light of other provisions in the same document, it seems to be clear that it was his intention that his two daughters, Eliza and Catherine Kunhardt, should ultimately receive the whole of the fund of £13,000, the vesting of £4,500 being merely suspended or postponed during Harriet’s lifetime. In this respect the will under consideration much resembles that which was before the Court of Appeals in Matter of Young, 145 N. Y. 535. It was said in Matter of Embree, 9 App. Div. 602-605, that, “ even though there be no.other gift in the will than that contained in a direction to pay or distribute in the future, yet if such payment or distribution appear to be postponed for the convenience of the estate only (as to let in some inter'mediate estate), the ulterior legatees will take a vested interest at the death of the testator.” This is precisely the condition created by the clause of the will of Wheaton Bradish, concerning which a construction is asked. My conclusion is that the testator’s daughters, Eliza and Catherine Kunhardt, severally took, at the testator’s death, vested interests in the fund of £4,500 set aside to provide for Harriet during her lifetime, and consequently that their representatives will, upon the death of Harriet, be entitled to said fund and the accumulations of income, and are, during Harriet’s lifetime, entitled to receive the surplus income.

Judgment accordingly.  