
    Frances S. Van Nostrand and Anabel G. Van Nostrand, by Michael H. Hirschberg, their Guardian ad Litem, Respondents, v. Sarah M. Marvin and Fanny V. N. Ramsdell, Individually and as Executors and Trustees, etc., of John J. Van Nostrand, Deceased, Appellants, Impleaded with Others.
    
      Estate in remainder—when, in default of children of the life lenefitim’y, it rests in the heirs of the testator at the time of his death.
    
    A testator, by his will, provided as follows: “All the rest of my estate I give, devise and bequeath to my executors in trust, to collect the rents and income and apply the same to the use of my children during their natural lives, and, after their decease, to their children, the part the deceased parent would be entitled to under the laws of the State of Hew York-.”
    He was survived by three children and a grandson (the child of a son who died during the testator’s lifetime), who were his, only heirs at law.
    
      'Meld, that, in the event of a child dying without children, the share, of the estate, to the income of which such child was entitled for life, vested in the heirs of the testator as of the time of the testator’s death. '■
    
      Appeal by the defendants, Sarah M. Marvin and Fanny V. N. Ramsdell, individually and as executors and trustees, etc., of John J. Van Nostrand, deceased, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 30th day of November, 1896, upon the report of a referee as adjudges as follows:
    “ And in case said Fanny Van Nostrand Ramsdell dies without lawful descendants her surviving, then said one-third part vests in fee, on the death of-said Fanny Van Nostrand Ramsdell, in the following named parties to this action in the proportion named, viz.: In the defendant John J. Van Nostrand, the one-third part thereof; in the defendant Sarah M. Marvin, if she be then living, the one-third part thereof; and in case the said Sarah M. Marvin be then dead, such one-third part vests in her lawful descendants her surviving; and in these plaintiffs each the-one-sixth part thereof.” Also from the following words- contained in the fourteenth and fifteenth folios of said interlocutory judgment, viz.:
    “ And in case said John James Van Nostrand dies without lawful' descendants him surviving, then said one-third part vests in fee, on the death of said John James Van Nostrand, in the following named parties to this action in the proportion named, viz.:
    “ In the defendant Fanny V. N. Ramsdell, if she be then living, the one-third part thereof, and in case the sgid Fanny V. N. Rams-dell be then dead, such one-third part vests in her lawful descendants her surviving; in. the defendant Sarah M. Marvin, if she be then living, the one-third part thereof, and in case the said Sarah M. Marvin be then dead, such one-third part vests in her lawful descendants her surviving, and in the plaintiffs each the one-sixth part thereof.”
    • Also from the decision of the court overruling the exceptions made, filed and served by these defendants to the referee’s report mentioned in said-interlocutory judgment, which exceptions were as follows, viz.:
    “ 1. They except to that part of said report in which it is found, decided and" reported that the rights and interests of the parties in the premises are as therein stated.
    “ 2. They except to the said report because it should find and decide that the rights and interests of the parties-.in the premises are as follows:
    
      “The plaintiffs Frances S. Van Nostrand and Anabel G. Van Nostrand are each seized of and entitled to one equal undivided eighth part of said premises; and as to the remaining three equal-undivided fourth parts of said real estate, the trust created in and by the eleventh section or paragraph of the will of John J. Van Nostrand, deceased, set forth in the complaint, still exists and continues, and the defendants Fanny Van Nostrand Ramsdell and Sarah M. Marvin, as the sole surviving trustees under said will, together with Louisa B. Van Nostrand, who has been,' by an order of this court, appointed a trustee under said will in place of Gardiner Van Nostrand, deceased, are seized of as tenants in common with the plaintiffs, and entitled to the said three equal undivided fourth parts of 'said real estate, to have and to hold as trustees for the defendants Sarah M. Marvin, Fanny V. N. Ramsdell and John James Van Nostrand under the trusts contained .and expressed in said eleventh section of said will, the said trusts to terminate as to one of said fourth parts on the death of the defendant Sarah M. Marvin, and said one-fourth part to pass on her death to her lawful issue, if any; as to one other of said fourth parts the said trust shall terminate at and upon the death of the defendant Fanny Van. Nóstrand Ramsdell, and said one-fourth part shall pass on her death to her lawful issue, if any ; .and as to the remaining one-fourth part the said trust shall terminate upon the death of the defendant John James Van Nostrand, and said last-mentioned fourth part shall pass upon his death to his lawful issue, if any; but in case of the death of said Sarah M. Marvin, Fanny V. N. Ramsdell and John James Van Nostrand, or any or either of them, without leaving lawful issue, the share of each one so dying being undisposed of by the will of said testator John J. Van Nostrand, shall pass to the heirs at law of the testator John J. Nan Nostrand, or to the heirs, assigns or devisees of such heirs at law of said testator.”
    And also from all parts of said interlocutory judgment which defines the rights, shares and interests of the respective parties in the real estate therein described, and the disposition of the proceeds of the sale therein ordered to be made, and which confirms the report of the referee.
    
      Alfred Jaretzki&ná F. A. Brewster, for the appellants.
    
      Charles F. Brown, for the respondents.
   Bradley, J.:

The action is for partition of real property included in the residue ary estate of John J. Van Nostrand, covered by the provisions of the eleventh clause of his will, which is as follows:

“ 11. All the rest of my estate I give, devise and bequeath to my executors in trust, to collect the rents and income and apply the same to the use of my children during their natural lives, and after their decease to their children the part the deceased parent would be entitled to under the laws of the State of New York.”

He died in 1889, leaving surviving him three children : Gardiner Van Nostrand, Sarah M. Marvin and Fanny V. N. Ramsdell, anda grandson, John James Van Nostrand, the child of a son who had died in the lifetime of the testator. They were the only heirs at law.

In an action of the executors for a judicial construction of the will it was determined, and the parties acquiesced in the determination, that: “ It was the intention of said testator, as expressed in the eleventh clause of his said will, that his residuary estate should be held in trust by his executors in severalty for each of his children and his grandchild, the defendant John J. Van Nostrand; that is to say, the testator intended that there should be a trust in one share for each child or beneficiary, which, on the death of said beneficiary, should pass to his or her children under the laws of the State of New York, leaving the trust to continue only as to the shares of the surviving beneficiaries, and that said trusts should cease as to the said shares of the said children and grandchild respectively upon the death of the particular beneficiary for whose benefit such share is to be held. That the said testator, by the use of the word 1 children ’ -:<• * -x- intended to include and provide for his said grandchild, the defendant John James Van Nostrand,, as if he were one of his children.”

From the omission of any provision in the will for the contingency of death of the beneficiaries without children arises the question, dependent upon the construction of the eleventh clause, to be determined, who, in that event, will take the estate in remainder. There was a valid trust created which vested title in the trustees for the purpose of its execution during the lives of the beneficiaries in severalty and to terminate with the death of them. respectively. The plaintiffs are the children of the son, Gardiner Van Nostrand, whose death followed that of the testator. They,-therefore, became seized in fee of one-fifth of the residuary estate. As the other beneficiaries still live, the trust remains as to three-fourths, and that only, of the estate for lives. The defendants Nannie Van Nostrand Marvin and Elizabeth Van Nostrand Marvin are the children of Sarah M; Marvin, one of the beneficiaries of the trust. Mrs. Rams-dell and John J. Van Nostrand, the other beneficiaries, have no. issue.

The legal effect of the portion of the judgment appealed from is that in the event of the death, respectively, of Mrs.' Ramsdell and the grandson, John J. Van Nostrand, without- lawful descendants them surviving, the inheritance limited to their children will pass to and become vested in the heirs then surviving of the testator, thus partaking something of the nature of cross-remainders. Where, in such case, would remain the estate óf the remainder in'fee? There was 'quite anciently a notion and theory that the - fee could be in abeyance, and without any tangible existence, during a term when there was no person in esse in whom it could vest by operation of a grant or devise which in terms embraced it. (2 Black. Com. 107.) Such a supposed case would- arise from a grant to A.' for life and remainder to the heirs of B. and the death of A. before . that of B.- There would then be no heirs of the latter to take on the termination of the precedent estate.- The later and better view is that there is no support iir the law for such doctrine of abeyance; and that instead of remaining in mere expectation until the contingency arises to give effect to a grant or- devise of such future estate of inheritance, the fee remains in the grantor or the heirs of-the devisor until the event occurs which opens the way permitting it to become operative. The transition only, rests in abeyance until then. (Fearne on Remainders, 352;. Broom’s Legal Maxims, *394; 4 Kent’s Com. *258 ; The People v. Conklin, 2 Hill, 67.)

If these views are correct those estates of inheritance of one-' fourth each of the subject of the devise so limited" became vested in the heirs-of the'testaior as of the time of his death, subject- to become divested and’ to pass by the will.if the event occurs to render it operative.. It has not as to either of those two beneficiaries arisen, and in the event of their- death, or that of one of them, without issue, the inheritance, to that extent, will remain in the heirs of the testator, as of the time of his death or their heirs. This, in that event, will be the consequence of the absence of testamentary disposition by him of such estate in remainder.

Our attention is called to the case of Howland v. Clendenin (134 N. Y. 305) in support of the result given to the trial. In that case the question presented here does not seem, by the report of it, to have had any consideration. The action was brought- for the construction of a certain clause of the will of Howland, deceased, by which he gave twó-tenths of - his residuary estate to trustees in trust to pay the income to his two.daughters during their lives in severalty, and on them death he gave the remainder in fee to their issue and made no provision dependent upon default of such issue. In behalf of the daughters, founded upon certain language in the will, it was contended that the fee was in them subject to the trust and defeasible only by issue surviving them, and that, therefore, the estate, in that event, would go to their heirs and personal representatives, devisees or assigns. The trial court so held. The General Term held otherwise, and to the effect that on failure of issue the estate or remainder in fee on the termination of the trust would go to the heirs and next of kin of the testator. (Howland v. Howland, 30 N. Y. St. Repr. 526.) The modification made upon that decision was affirmed by the Court of Appeals, and in the opinion of the court, there delivered by Folleto, Ch. J., it was said: “ That if they die without issue, their portions must be distributed among the heirs at law and next of kin of the testator.” He left seven other children surviving him. It may be observed that the question whether the estate in remainder of each of the two-tenths thus limited was in the heirs of the testator as of the time of his death, or would become vested in his heirs surviving at the time of the termination of the trust on default of issue, does not appear to have been presented or considered at any stage of the litigation in that case, but that the question was whether or not the estate in fee subject to the trust would, in that event, be in those daughers. Further than that, therefore, the case of Howland v. Clendenin (supra) is not necessarily authoritative.

The appeals in the present case seem to have been taken only from so much of the judgment as relates to the disposition of the inheritance limited on the trust estate of which Mrs. Ramsdell and John J. Van Kostrand are the beneficiaries. It, therefore, is deemed unnecessary to give any consideration to the share held in trust for Mrs. Marvin. Her children, Hannie and Elizabeth, were living at the time, of the death of the testator. And it would seem that within the meaning of the statute the remainder limited to her children, whether or not defeasible, was vested. (1 R. S. 723, § 13; Moore v. Littel, 41 N. Y. 67; Powers v. Bergen, 6 id. 358.)

These views lead to the conclusion that the judgment should be so modified as to determine that in case the defendant Ramsdell dies without children, the estate limited on that of which she is the beneficiary of the trust, vested in the heirs of the testator upon his ■death, and that upon the like event applicable to the defendant John J. Van Nostrand, the judgment be in like manner modified as to the estate limited on that of which he is the beneficiary of the trust. Order to be settled on motion to all parties concerned in the modification.

All concurred, except Babtlett, J,, not sitting.

Judgment modified as indicated in.the opinion. Order to be settled on five days’ notice; costs to all ¡parties payable out of the estate.  