
    In the Matter of the Application of Morris B. Baer, App’lt, to be Relieved from his Purchase in the Partition Action of Francis Nathan et al., Resp’ts, v. Edmund Hendricks et al., Def’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 29, 1895.)
    
    1. Will—Cohstbuctioh.
    Where final division and distribution are to be made among a class, the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made.
    2. Same.
    In such cases, the gift is contingent upon survivorship, and, if it vests at all before the date of distribution, it is subject to be divested by the death, before that time, of a person presumptively entitled to share in the distribution.
    S. Same.
    Where a future interest is devised, not directly to a given person, but indirectly through the exercise of a power conferred upon trustees, the devise is designed to be contingent, and survivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift.
    4. Same.
    The rule that, in case of a devise to one person in fee, but in case of his death to another, the death referred to will be construed to be a death in the testator’s lifetime, has no application to a case where a point of time for distribution other than the death of the testator is mentioned, or where a life estate intervenes, or where the context of the will contains language indicating a contrary intent.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of the special term denying a motion by the purchaser of premises sold under an intelocutory judgment in an action of partition, to be relieved from his purchase, and ordering him to complete such purchase.
    
      Thomas W. Butts, for app’lt; Benjamin N. Gardozo, for resp’ts.
    
      
       Affirming 69 St. Rep. 76.
    
   O’Brien, J.

On the 6th of March, 1895, pursuant to the judgment in an action of partition, the referee offered for sale the premises in question, No. 27 Mercer street, in the city of New York, and the appellant in this proceeding, as the highest bidder, became the purchaser. Subsequently he petitioned the court to relieve him from his bid upon the sole ground that the title under the judgment resulting in the sale was not a marketable one. The courts below have denied his application, thus holding that the title offered is good, and that is the only question presented by this appeal.

It is admitted that Charlotte Gomez, who died December 1, 1849, leaving a will which was admitted to probate in that year, was, at the time of her death, seized and possessed of this property in fee. The defect which the purchaser claims to exist in the title under the referee’s sale arises under this will and the judgment in partition.

The property in question was disposed of by the residuary clause of the will, wherein the testatrix devised and bequeathed the same to her executors, as trustees, in trust for the use of her daughter Bmeline, with directions to pay over to her the rents, income or profits thereof, and in case of her death, leaving issue, to convey the remainder to such child or children or his or her heirs.

This provision of the will was modified by a subsequent clause, in which it was directed that in case of the death of Bmeline without children or their issue, her descendants, but leaving her sister Matilda surviving, then and in that case, the trustees were to apply the rents, income and profits of the property in question so held by them in trust to the use, benefit and support of Matilda during her natural life, and upon her death to convey the remainder “ to the children and lawful heirs of my brother Harmon Hendricks, deceased, to share and share alike per stripes.”

The daughter Bmeline died intestate and without issue March 20, 1885. The daughter Matilda survived her sister for several years, and died December 6, 1893, and so the trust then expired and the estate in remainder passed to such descendants of Harmon Hendricks as were contemplated by the will. Harmon was the brother of the testatrix, but died some time before the will was made, leaving ten children surviving, and who were alive at the death of her aunt, the testatrix, but all of them died before Bmeline, to whom the first life estate was devised. These children, or some of them, left wills under which any interest in the real estate in question which vested in them upon the death of the testatrix would pass. In the partition action none of the devisees of these children were made parties, but all persons who answered to the description of the living heirs of Harmon Hendricks at the date of the death of Matilda, on December 6, 1893, were brought in and are bound by the judgment.

The question, therefore, is, whether the remainder vested upon the death of Charlotte Gromez, the testatrix, in such of the children or descendants of her brother, Harmon Hendricks, as were then living, or only in such descendants living at the termination of the life estates to the two daughters of the deceased. If the remainder vested upon the death of the testatrix, then the contention of the petitioner as to defects in the title can be sustained, but not if it was contingent and to vest only in the future in the surviving children or heirs of the brother, since all such persons were made parties to the partition suit. The trust created by the provisions of the will referred to embraced personal as well as real property, and the contention of the purchaser is that the testatrix contemplated a division and distribution of the remainder at some renote period in the future, not only among the desceudof her brother then living, but also among the devisees and legatees of such as had died in the meantime, or their heirs or representatives, thus bringing into the class persons who are not of her blood and who were wholly unknown to her in her lifetime. The duty which she imposed upon her trustees was clear and simple, and that was to distribute the remainder, when the trust terminated by the death of the life tenants, among the children and lawful heirs of her deceased brother.

The language of the will, read in the light of settled rules of construction, indicates quite clearly that she did not intend that the remainder should vest upon her death in the then living children and heirs of her brother, but should be postponed until the time for division and distribution arrived, and then to vest in such persons as answered to the description who survived. The children of her brother were to take no interest whatever, except upon the contingency of her daughter’s death without issue. In case of her death leaving issue such issue would take the remainder absolutely.

Where final division and distribution is to be made among a class the benefits of the will must be confined to those who come' within the appropriate category at the date when the distribution or division is directed to be made. Bisson v. W. S. R. R. Co., 143 N. Y. 125; 62 St. Rep. 133; Goebel v. Wolf, 113 N. Y. 405-411; 23 St. Rep. 176; Teed v. Morton, 60 N. Y. 506; In re Smith, 131 N. Y. 239, 247; 43 St. Rep. 271. In such cases the gift is contingent upon survivorship, and if it vests at all before the date of distribution it-is subject to be divested by the death before that time of a person presumptively entitled to share in the distribution. While this rule is sometimes made to yield to indications of a contrary intent in the will, yet it may be said to be a general rule and there is nothing to be found in the will in question to prevent its full application.

Moreover, there is not in this devise any words of direct and immediate gift to the children or heirs of the brother, but a direction that the trustees should convey to them at a future time on a certain contingency. They were to take through the medium of a power in trust, and the time of the vesting of the interest was thus deferred in form, at least until the time of distribution. It is a case then where, as the cases express it, “futuriry is annexed to the. substance of the gift,” and warrants the application of the principle that where a future interest is devised, not directly to a given person, but indirectly through the exercise of a power conferred upon trustees, tfye devise is designed to be contingent; and snrvivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift. This rule lias been applied in numerous cases that do not differ essentially in the material facts from the one at bar. Smith v. Edwards, 88 N. Y. 92; Delaney v. McCormick, id 174; Warren v. Durant, 76 id. 136; Vincent v. Newhouse; 83 id. 511; Delafield v. Shipman, 103 id. 463; 4 St. Rep. 247; Hobson v. Hale, 95 id. 588.

The rule that in case of a devise to one person in fee, but.in case of his death to another, the death referred to will be construed to be a death in the testator’s lifetime, has no application to this case. The rule is never permitted to operate in a case where, as here, a point of time for distribution is menlioned other than the death of the testator, or where a life estate intervenes, or where the context of the will contains language indicating a contrary intent. In re Denton, 137 N. Y. 428; 51 St. Rep. 60; Washbon v. Cope, 144 N. Y. 297; 63 St. Rep. 716; Benson v. Corbin, 145 N. Y. 351; 64 St. Rep. 815; Stokes v. Weston, 142 N. Y. 433; 59 St. Rep. 811; Vanderzee v. Slingerland, 103 N. Y. 47; Mullarkey v. Sullivan, 136 N. Y. 227; 49 St. Rep. 333; Fowler v. Ingersoll, 127 N. Y. 472; 40 St. Rep. 206.

The intention of the testatrix was that upon the death of the daughters, for whose benefit the trust was created, without issue, the remainder should be distributed among such of the children of her brother as might then be living, and the lawful heirs of such as might be dead, and all the persons who answered to that description at the time of distribution having been made parties to the action of partition and become bound by the judgment, the title tendered was good and marketable.

Nor do we think that the title was involved in so much doubt, within the meaning of the rule, as to justify the purchaser in refusing to perform; and moreover, the courts below exercised their discretion in that respect, with which we ought not to interfere. Kelso v. Lorillard, 85 N. Y. 177; Fry on Specific Performance, §§ 865, 871; Radford v. Willis, L. R., 7 Ch. App. 7.

■ For these reasons we think the order appealed from should be affirmed with costs.

All concur. Order affirmed.  