
    Georgiana H. Salter, Appellant, v. Henry R. Drowne, as Trustee under the Last Will and Testament of Margaret Ann Harrison, Deceased, and Others, Respondents, Impleaded with Georgiana H. Salter, as Administratrix de Bonis Non with the Will Annexed of Margaret Ann Harrison, Deceased, and as Executrix, etc., of William T. Salter, Deceased, and United States Fidelity and Guaranty Company, Appellants.
    First Department,
    December 30, 1910.
    Will construed — trust — when remainders do not vest until death of life beneficiary — when life beneficiary cannot take as remainderman — costs — excessive counsel fees.
    A testatrix bequeathed a specific sum in trust, income to her sister for life, on her death the income to go to a daughter of the testatrix for the support of her and her own daughter with á further provision that if the daughter should not he living or in the event of her death the principal should go to her issue absolutely, but if there were no issue then to'the next of kin. By a further clause the testatrix devised lands in trust, net income to a daughter of the testa-, trix for life for the support of herself and her own daughter, with a proviso that if the daughter were not living at the death of the testatrix or should- die, the land should be conveyed in fee to the granddaughter, should she be of the ■ age of twenty-one years, and if not, should be held in trust until that time, and then conveyed to her, but if the granddaughter should not he living the lands should he conveyed to the heirs of the testatrix. By a subsequent clause the residue of the estate was placed in trust to be divided into two equal parts, one of them to be invested during the life of the daughter of the testatrix, with a proviso that if the daughter should hot be then living or should die the principal should go to her issue, if any, and if not then to the next of kin of the testatrix. The granddaughter died before and the sister died after the testatrix, leaving the daughter of the testatrix sole heir and next of kin.
    
      Held, that the testatrix intended to suspend the vesting of the remainders until the death of the daughter, the life beneficiary, and that hence the daughter, although she became sole heir and next of kin, was- not entitled to release to herself her rights as beneficiary, end the trust and take title as remainderman.
    As the costs in an action to construe a will are within the discretion of the court, the Appellate Division will not allow costs to either party where the allowance of counsel foes is deemed to he excessive even though the latter question is not before the court. "
    Appeal by the plaintiff, Georgiana H. Salter and by the defendants, Georgiana H. Salter, as administratrix, etc., and another, from parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 3d day of August, 1910, upon the decision of the court, rendered after a trial at the New York Special Term,' construing the 5th, 6th and first part of the 7th clauses of the will of Margaret Ann Harrison, deceased.
    The testatrix died in April, 1895. She made her will February 12, 1879. The following are the clauses in question :
    
      “Fifth. I give and bequeath to my executors the further sum of Five thousand dollars, upon trust, to invest and keep the same invested and collect and receive the interest and income thereof and pay the same to said Oakley Clark to be by him paid to my sister, so long as she shall live ; and on the death of my sister that my said executors pay such interest to my daughter Georgiana to be by her applied to the support of herself and the support and education of her daughter, May Florence; and if my daughter be not living or on her death then to pay and divide such principal, sum or the investment thereof to the issue of my daughter. absolutely, and if none, then to my" next of kin. * . * *
    
      “Sixth. I give and devise my house and lot of land number 125 Fourth avenue, between 12th and 13th streets in the city of New York, to my executors, in trust that they rent the same from year to year or for a term not exceeding twenty-one years, for such rent as they -may consider proper and collect the rents of said house and lot and after paying taxes, insurance and all other charges to pay the net rents to" my daughter Georgiana so long as she shall • live, to be by her applied to the support-of herself and the support and education of her daughter May Florence; and if my daughter be not living, or on her death, to convey such house and lot in fée to said May Florence Salter, should she then be of the age of twenty-one years, and if she be not then of such age, that my executors hold such "house and lot in trust until said May Florence'attains such age and then to convey such house and lot in fee to. said May Florence Salter ; and if said May Florence Salter be not living, then to convey such house and lot in fee to her issue, and if none, then to my heirs at law. “ ■ * *
    “ Seventh. I give, devise and bequeath all the rest, residue and ■ remainder of my estate and property, .real as well as personal, of which -I shall die seized, possessed or entitled, to my executors, in trust that they divide the same into two equal- parts or shares and keep one of such parts or shares invested during the life of my. daughter Georgiana and pay the interest and income thereof to her, quarterly, so long as she shall- live -to be by her applied to the sup? port of herself and the support and education of her daughter May: And if my daughter should not be living or on her death to pay such principal sum or the investments thereof to the issue of my daughter and if my daughter shall leave no issue than to my next of kin.”
    May Florence Salter died without issue July 13, 1886. The plaintiff is the sole heir and next of kin of the -testatrix, and, when the testatrix died, was forty-five years of age. She is now a widow and has no children. Mrs. Seaman, the sister of the testatrix, died August 26, 1896.
    
      William H. Hamilton, for the appellant.
    
      Charles II. Beckett, Edward L. Frost and William II. Bobbins, for the ■ responden ts.
   Milleb, J.:

The plaintiff, claiming to have a beneficial life estate in the income of the- three trusts, and to be entitled to the remainder in the whole o'f the j>rincipal held in trust, has released to herself her right as beneficiary, and now claims that the trust estate has become merged in. the remainder pursuant to chapter 152 of the Laws of 1893. It is unnecessary to consider the effect of ■ the release, for we are of the opinion that the intention of the testatrix to suspend, the vesting of the remainders until the death of the life beneficiary is unmistakable.

It is to be observed that there was no immediate gift of the remainder in either case, but only a direction to the trustees to pay and divide in the future with respect to the trusts of the personal property, and to convey in the future with respect to the trust of the real estate. Of course, rules of construction will not override an intention otherwise plainly manifested. But there is nothing within the four corners of this will to take this case out of the general rule ; on the contrary, there is much to show the intention of the testatrix to postpone the vesting of the remainder independently of said rule of construction. The trust of the $5,000 in the 5th clause was to pay the income to the sister during her life, then to the daughter, this plaintiff, during her life. Upon the death of tire daughter the principal sum was to be divided and paid to the issue of the daughter or, failing such issue, to thé next of kin of the testatrix. When the will was made the plaintiff’s daughter May Florence was living and, even when the testatrix died, it could not be said that there was no possibility of the'daughter having other issue. The principal of the trust, created by the first half of. the 7th clause, was disposed of in the same manner. In all probability the ulterior bequest to the next of kin of the testatrix was considered by her, if at all, only as a remote possibility. She intended to provide for the daughter and the daughter’s issue by creating a trust to,endure during the life of the daughter, the principal to be divided upon the latter’s death among such issue. If an intention to suspend the vesting of a remainder during the term of a trust estate was ever manifested, such purpose was plainly manifested by this testatrix. We cannot remake the will, simply because May Florence happened to die before the death of the testatrix, or because it is now, fifteen years after the death of the testatrix, reasonably certain that the plaintiff will not leave issue. Mo doubt technically, as the appellant contends, the plaintiff is the sole next of kin of the testatrix. But surely the testatrix did ■ not intend to give to her a remainder limited upon her own life. The ulterior bequest then cannot go to those who will technically be next of kin ” of the testatrix, but in providing for that remote contingency the testatrix did not have the particular individuals in mind. Certainly she' meant persons who would answer to that description after the death of the daughter, and the expression must be so construed.

With respect to the real estate, the remainder was directed to be conveyed to the granddaughter, May Florence, if living; if not, to the issue of the latter; and, if none, to the heirs at law at the testatrix. May Florence, having died without issue before the death of-the .testatrix, it was certain that upon the death of the latter the ulterior devise to the heirs at law of the'testatrix would take effect, and this plaintiff was the sole heir at law. If the testatrix intended the plaintiff in any event .to take the remainder, we have a case of a remainder to a person limited upon her own life, and surely that was not intended. • The testatrix manifested an intention, as plainly as words could do it, to create a trust during the life of the plaintiff which should be beyond the power of destruction. This is not a case merely of postponing the distribution to let in an intermediate life estate, as was the case of Matter of Embree (9 App. Div. 602; affd. on opinion below, 154 N. Y. 778), which is chiefly relied upon by the appellant. It is to be noted that in that case the remainder was not limited upon the life of the remaindermen. The sole question.' is whether the testatrix intended that the remainder should vest upon her death. We think it plain that she did not and we cannot hold otherwise'from the mere fact that the plaintiff is now the sole heir at law of. the testatrix.

If there could be any doubt as to the construction of the 6th clause, that doubt vanishes at onde .upon construing it in connection .with the 5th and 7th, for it thus appears that á single purpose dominated the. act of the testatrix, i. e.j to create a trust of both' the real and personal property to' endure during the life of the plaintiff and to suspend vesting of the remainder until the death of the life beneficiary.

While the will speaks from the death of the testatrix, we gather her intention from the situation when the will was made. It is unfortunate that she did not change her will after the death of May Florence. But she may have counted on the birth of other issue of ■ her daughter. Before her death she was adjudged incompetent and how long she had been in that condition does not appear. At any rate, it is useless to speculate upon the reasons for not changing the will. . Doubtless, if the testatrix had anticipated the situation now existing, she would have made a different will. But we cannot supply that'omission.

The Court of Appeals has recently held that a bequest was contingent in a case, where the language of the will was, “ upon the death of my said son I give, devise and bequeath the said share to my .unmarried daughters in equal shares,” because such was deemed to have been, the testamentary intention. (Robinson v. Martin, 200 N. Y. 159.) In this case, the testamentary intention appears to us to be too plain to admit of argument.

We think the allowances of counsel fees in this case were excessive. The question is not before us, as that part of the judgment is not appealed from. However, the matter of costs upon this appeal is within our discretion and because of the excessiveness of the allowances already made, no costs will be allowed to either party on this appeal.

The judgment is affirmed, without costs.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment affirmed, without costs.  