
    Nathalie E. Baylies, Plaintiff, v. Schuyler Van Cortlandt Hamilton, Gertrude Ray Hamilton and Violet Loring Hamilton, Appellants, Impleaded with Alexandra Schuyler Hamilton and Beatrice Ray Hamilton, Respondents, and Others.
    
      Will — devise of a life estate, with remainder to the children of the life tenant, to “go with my residuary estate ” — limitations on the rule that the intention of the testatoi' is controlling — an annuity charged upon specific real estate is not an incurra bi'ance on the testator's other real estate.
    
    A testator by bis will devised certain property to Ms executors in trust, to pay over the income thereof to his brother for life, and further provided “ upon his death the same shall go with my residuary estate.” The will also provided: “All the rest and residue and remainder of my property I give, devise and bequeath to the children of my brother, Schuyler Hamilton, Jr., the share of any child dying before attaining the age of twenty-one years to go to the survivor.”
    
      Held, that a child born to Schuyler Hamilton, Jr., after the death.of the testator,■ was not entitled to' take any interest in the real estate -so devised to the executors in trust, because of the limitation contained in the will that such remainder should go with his residuary estate, as the after-born child could not participate in such residuary estate.
    O’Brien, J., dissented.
    
      Semble, that it would have been otherwise had the testator provided, in respect to the remainder in the real estate devised in trust for the life of his brother, Schuyler Hamilton, Jr., that upon his death such remainder should go to the children of his brother, and such after-borq child would in that case have been entitled to participate.
    While the intention of the testator is to govern in the interpretation of a will, although it may not be in entire harmony with the language contained therein, such method of construction is not to be resorted to where the language is explicit and free from doubt or uncertainty, because the court may be of opinion that, had the testator anticipated that which happened after his death, he would have made a different disposition of his estate.
    The fact that a testator makes an- annuity a charge upon specific real estate is evidence that it was his intention that his other real estate should not be incumbered therewith, especially where such other real estate is specifically devised.
    Appeal by the defendants, Schuyler Van Cortlandt Hamilton, Gertrude Bay Hamilton and Violet Boring Hamilton, by Edward B. Vollmer, their guardian ad litem,, from so much of a final judgi ment of the Supreme Court, entered in the office of the clerk of the. county of New York on the 13th day of May, 1898, upon the report of a referee, as awards to the defendant, Alexandra Schuyler Hamilton, or to any child of Schuyler' Hamilton, Jr., hereafter born, or to the defendant Beatrice Bay .Hamilton, any share or' interest by way of. charge or otherwise in an undivided three-eighths part of the premises sought to be partitioned herein or in the proceeds of the sale thereof, with notice of an intention to bring up for review 'upon said appeal so much of an interlocutory judgment of the Supreme Court, entered in said clerk’s office on the 11th day of March, 1898, upon a report of the referee, as affects the disposition of said undivided three-eighths interest devised under the last will ' and testament of Bobert Bay Hamilton, deceased.
    
      Elihu Hoot and Edward E. Yollmer, guardian ad litem of Schuyler V. C. Hamilton, Gertrude B. Hamilton and Violet L. Hamilton, for the appellants.
    
      Lewis L. Delafiéld, guardian ad litem for Alexandra S. Hamilton, respondent. ■
    
      George W. Ellis, guardian ad litem for Beatrice Bay Hamilton, respondent.
   Van Brunt, P. J.:

This action was brought for the partition of certain property at the comer of Broadway and Spring street in the city of New York, of • three undivided eighths interest in which Bobert Bay Hamilton died seized. The questions upon this appeal arise as to the construction of the will of Bobert Bay Hamilton. He died on the 23d of August, 1890, leaving a last will and testament, dated.March 1Y, 1890, which was admitted to probate by the surrogate of New York county.

The will in question is as follows: :£ I, Bobert Bay Hamilton, of the city of New York, do make, publish and declare this my last will and testament hereby revoking all former wills.

" I direct my executors, in case I die in a place, not inconveniently distant from a proper crematory, to have my body cremated.

“ I give, devise and bequeath my interest in the property known as the Prescott Building, corner of Broadway and Spring street, in the city of New York, to my executors for and during the natural life of my brother, Schuyler Hamilton, Jr., in trust nevertheless to receive the income and profits thereof, and after paying all taxes, insurance, interest and repairs to pay over the net income thereof to my said brother, Schuyler Hamilton, Jr., for his support and maintenance, free from any claims of creditors, and upon his death the same shall go with my residuary estate. I authorize my executors to lease said property for a term not exceeding twenty-one years to commence in possession.

I give and devise to the child, my adopted daughter, christened Beatrice Bay, at Atlantic City in August, 1889, an annuity of twelve hundred dollars a year, to be paid to her by liiy executors in monthly installments during her natural life, and I hereby charge the same upon my property in the city of Brooklyn. I hereby appoint Edmund L. Baylies guardian of the person and estate of the said Beatrice Bay.

I direct my executors as soon as possible during the lifetime of the survivor of them to expend the sum of ten thousand dollars in the purchase and erection of an ornamental fountain which I give and bequeath to the Mayor, Aldermen and Commonalty of the City of New York, provided that such fountain maybe erected in one of the streets, squares or public places in said city.

“ I give, devise and bequeath to my aunt, Nathalie E. Baylies, all my property, except books, which at the time of my death may be in her house, number 369 West 28th Street, in the City of New York.

I give, devise and bequeath all my books, silver and jewelry to • my cousins, Edmund L. Baylies, Cornelia P. Lowell and Walter C. Baylies.

I give, devise and bequeath my guns, rifles, boats, dogs and my share in the Monroe Marsh Company to my friend, Gilbert M. Speir, Jr., requesting him to sell such as he does not desire to keep for his own usé.

All the rest and residue and remainder of my property, I give, devise and bequeath to the children of my brother, Schuyler Hamilton, Jr., the share of any child dying before attaining the age of twenty-one years to go to the survivor, and in case all said children die before attaining the age of twenty-one years, I give, devise and bequeath the said rest, residue and remainder. of my property .as follows: The sum of ten thousand dollars and all property which may hereafter come to me from my father or any one of his blood or its value to the children of William G. Hamilton, all the balance of my estate to the children of Nathalie E. Baylies.

“I appoint,Gilbert'M. Speir, Jr., and Edmund L. Baylies execu-. tors of this, my last will and testament.

“Witness my hand and seal this 17tli day of March, 1890.

“ROBERT RAY HAMILTON.”

■ At the date of the testator’s will, his brother, Schuyler Hamilton, Jr., was a married man having two children, the infant appellants, Schuyler V. C. Hamilton and Gertrude Ray Hamilton. Ten days after the date of the will a third child, the infant appellant, Violet -L. Hamilton, was born. After the death of the testator, Schuyler Hamilton, Jr., married a second time and another child was born to him on the 27th of January, 1897, the infant defendant Alexandra S. Hamilton. A child referred to in the will by the testator as his adopted daughter had been provided for by him until his death.

In construing theWill the learned referee held that the child born to Schuyler Hamilton, Jr., after the death of the testator was enti-. tied to participate in the final distribution of the real estate devised to Schny.ler Hamilton, Jr., for life,'and that the annuity given to Beatrice Ray was a charge upon the remainder of the property, in question after the death of Schuyler Hamilton, Jr., and it is from these determinations of the referee that this appeal is taken. ' The language of the will in respect to the final distribution of the estate devised to Schuyler Hamilton, Jr., is'that “ upon his death the same shall go with my residuary estate.” By the residuary clause the testator devised and bequeathed all the rest and residue and remainder of his; property to the children of his brother, Schuyler Hamilton, Jr.j the share of any child dying before the age of twenty-one years to go to the survivor, and in case all said children should die before attaining the age of twenty-one years, there was a devise and bequest over.

It is conceded that, under the residuary clause, only those children who were living at the' death of the testator were entitled to take, and that the child born to Schuyler Hamilton, Jr., after the death of the testator has no interest in such residuary estate. It is further conceded that had the testator provided in respect to the remainder of the real estate devised to Schuyler Hamilton for life, that upon his death such remainder should go to, the children of his brother, the after-born child of Schuyler Hamilton, Jr'., would have been entitled to participate. But it is claimed that, under the- peculiar language of the will, such after-born child is not entitled to take because of the limitation contained in the will that such remainder shall go with his residuary estate, and that as the after-born child could not participate in the residuary estate, it took no interest under the will in the real estate devised to Schuyler Hamilton, Jr., for life. This view, we think, is the correct interpretation of the will. There was no devise to a class, as would have been the case had the devise been to the children of Schuyler Hamilton, Jr. But by the language •of the will the persons who are to take this remainder are designated, namely, those persons who took his residuary estate. The right to participate in the residuary estate is made the qualification to take under this clause- disposing of the remainder of the real estate devised to Schuyler Hamilton, Jr., after his death.

It is said that the testator knew of the birth of one of Schuyler Hamilton’s children after the date óf his will and before his death, but he made no change in his will; and that it is to be assumed that he intended to benefit all the children that Schuyler Hamilton, Jr., should leave at his death. The testator was a lawyer. He drew his own will, and probably knew what he intended to do with his property, and ‘by distinct and unequivocal language he states explicitly that the remainder shall go with his residuary estate. Now if it goes, as has already been stated, to this after-born child, it does not go with the residuary estate. The testator by the language used distinctly provided that that remainder should go to those who took under the residuary clause, and it is only by an interpretation utterly at variance with the words used by the testator that the construction claimed by the respondent can be put upon the will. We are asked to construe this will in view of circumstances which in all probability the testator never thought of, namely, the remarriage of Schuyler Hamilton, Jr., under the circumstances stated in the record. While it is a canon of construction, never to be disregarded, that the intention of the testator is to govern in the interpretation of a will although it may not be in entire harmony with the language . therein-contained, .yet such method of construction is.not to be resorted to where the language is explicit and free from d.oubt or uncertainty. In the case at bar it would have been difficult for the testator to have used language more forcible had he intended that only those who participated in his residuary estate should take-as remaindermen the interest in the real estate, the income of which was devised for life to Schuyler Hamilton, Jr. He has taken special care to designate the persons who should benefit, by that devise, and it does not seem to us that this apparently clear intention .of the testator is to-be departed from because we might be of the opinion that, had he anticipated that which happened after his death, he would have made a different disposition of this remainder. We. think, therefore, that only the children of Schuyler Hamilton, Jr.,, who participate in the residuary estate are entitled to take the-remainder of the real estate devised to Schuyler Hamilton, Jr., for life. . .

Ueithér do We think that, the annuity given to Beatrice. Bay is a charge upon this remainder. The language of the will is.: “I give and devise to the child, my adopted daughter, christened Beatrice Bay, at Atlantic City, in August, 1889, an annuity of twelve hundred dollars a year to be paid to her by • my executors in monthly installments during'her natural life,-and . I hereby charge the same' . upon my. property in the ' city of Brooklyn.” At the time of the death of Bobert Bay Hamilton, he had-personal property to the amount of about $60,000, and debts amounting to about $20,000, ■ leaving a balance of $40,000, the income of which would be appli- ■ cable to the production of this annuity, and which was clearly .sufficient for that purpose. In consequence of litigations arising after his death, which he had no reason to anticipate and which there is no evidence that he did anticipate, his personal estate has been very materially diminished so that it is not. sufficient for the . production of this annuity. It is claimed that this annuity is to be-produced before .any person can benefit under the provisions of the will,, except as to certain specific legacies and the devise for the -benefit of Schuyler Hamilton, Jr., that being also considered a specific devise. We do not think that this contention can be supported. The fact that Bobert Bay Hamilton made this annuity a charge upon specific real .estate is an evidence- that it was. his hitention that his other real estate should not be incumbered with any such charge. But even if this be not so the same reason that prevents this annuity from being a- charge upon the devise to Schuyler Hamilton, Jr., namely, that it is a specific devise, covers the remainder after his death because that is a specific devise to certain definite individuals who are to be ascertained by means of their participation in his residuary estate, the effect of the devise being precisely the same as though he had named individually the persons who took under the residuary clause. The devise to them is just as specific as the devise to Schuyler Hamilton, Jr., and must necessarily be , governed by the same rules of construction. We think, therefore, that the learned referee erred in holding that' this annuity was a charge upon such remainder.

The judgment should be modified in accordance .'with the views expressed in this opinion, with costs to all parties appearing, upon this appeal to be paid out of the estate. . '

Babrett, Rumsey and Patterson, JJ., concurred.

O’Brien, J.:

I concur upon the second question as to the annuity to Beatrice Ray; but dissent on the",first question as to the right of Alexandra S. Hamilton to participate in the Broadway and Spring street property for the reasons given by the learned referee.

Judgment modified as directed in the opinion, with costs to aL parties appearing upon the appeal to be paid out of the estate. 
      
       The following is the opinion of the referee:
      Hamilton Odell, Referee:
      By his will Robert Ray Hamilton gave to his brother, Schuyler Hamilton, Jr., an estate for life in the premises in question, and directed that upon his death "the same shall go with my residuary estate." All of the residue of his estate he devised and bequeathed to the children of his said brother Schuyler. If either child should die before becoming twenty-one years of age, his "share" should go to the survivors. If all of the children should die, the whole of the residue was given to other designated parties.
      At the time 'of the testator’s death Schuyler Hamilton, Jr., had three children living. A fourth child has since been born, and the question presented is whether the fourth child is entitled to claim under the residuary clause of the will. In other words, whether the word “ children ” in the residuary clause refers only tO' children of Schuyler living at the death of the testator or includes after-born children as well.
      It seems to me that the intention of the testator is free from reasonable doubt. He was Unmarried.' His -nearest kindred were his father and Schuyler Hamilton, Jr., his only brother.. Beatrice "Ray was his adopted daughter. For her he made provision in the form of an annuity which was charged upon his -‘ property in the city of Brooklyn.” He gave a few specific legacies. To his brother he gave a life estate in the premises which are sought to be partitioned in this action. The 1'emainder of those premises he made a part of his residuary estate (House v. Raymond, 3 Hun, 44); and all of his residuary estate he gave to “the children” -of his brother. So that, so far as these premises are concerned, his wish was that they should belong to his brother and his brother’s children — to him for life, and ■to them in fee upon his death, or to such of them as should attain the age Of twenty-one years. The gift of the fee was not to the brother’s children then living, or to the children who might be living at the father’s death, but to such of the “ children” as should attain twenty-one years of age, or to the “children” provided, they attained that age. I cannot see how the case can be distinguished ■from' Stevenson v. Lesley (70 N. Y. 512). There the gift of the residuary estate was in trust for the children of the testator’s son and daughter to be paid and conveyed to them as they respectively became of age ; and the court held that each of the grandchildren took “a vested remainder in fee of his or her Share, .expectant upon the termination of the trust at his of her majority; ” that the gift was to a class, to take effect in enjoyment at a future time; and that a child of the ■testator’s son born after the testator’s death and before "the time for distribution had arrived, was entitled to a share of the estate. So here, the gift is to the children of the testator’s brother; it is to take effect in enjoyment at future time, that is, on the death of Schuyler Hamilton, Jr.; each of the children living at the death of the testator took a vested remainder in fee, subject to be divested on his or her-death before becoming twenty-one years "of age, and subject also “ to open and let in children born thereafter; ” and, therefore, the infant defendant Alexandra Schuyler Hamilton is entitled to a share of the remainder. In Monarque v. Monarque (80 N. Y. 320) the testator gave to his wife the use, during her life, of all his real and personal property. He then directed as follows : “ 1 give and bequeath the income arising from my estate to my daughters (naming them) to be divided between them, share and share alike, during their and each of their respectivé natural life, and remainder to their respective children and to-their respective heirs and assigns forever.” The court held that the manifest design of the testator was to give successive life estates in the property, first to the wife and then to the daughters, remainder in fee to the daughters’ children, and that the remainder so given vested upon the testator’s death in the children of his daughters living at that time, subject, however, “ to open and let in after-born children who might come into existence during the life of the mother.” The-same general rule is declared in many cases, including Matter of Brown (93 N. Y, 295) and Byrnes v. Stilwell (103 id. 453), cited by Mr. Vollmer, guardian for the children of the first marriage of Schuyler Hamilton, Jr. He sees reasons why those cases are not applicable to the facts of the present case which I am not able to discover.
      It is objected that, as the residuary estate consists in part of personalty and in-part of the remainder of the premises in question, and as the parties entitled to-share in the personalty were determined at the death of the testator, and as the infant Alexandra is excluded from taking any share thereof, the same rule must govern as to the said remainder, although the time for the “ distribution ” of the remainder is postponed until the death of the tenant for life. It is conceded that such is the rule of the English courts. I do not find that it has been so decided in any court of this State. The general rule is that “ where final division and distribution is 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.” (Matter of Baer, 147 N. Y. 353; Bisson v. West Shore R. R. Co., 143 id. 130.) In the present case it does not appear that at the death of Robert Ray Hamilton there was any part of the residue of his estate that was immediately distributable. But if it then had been, it is difficult to see why the general rule above referred to should be overridden or nullified as to property which was not to be distributed or vest in possession until the happening of a future event. In Britton v. Miller (63 N. 0. 268) the facts were as follows: A. J. Spivey died in 1854. By his will he gave certain real and personal' property to his wife for life, and after her death to his sister, Margaret Britton. Margaret Britton died in 1864, leaving a will by which she gave her entire property to the children of her brother Stephen and of her sister Mary, their heirs and assigns forever. Mrs. Spivey, the life tenant, died in 1867. When Margaret Britton died her brother Stephen had one child, who died in.September, 1864. Before the life tenant’s death another child was born to him, and the question, before the court was whether this after-born child was entitled to share in the remainder, which had been given by Spivey to Margaret Britton, and by her given to Stephen’s and Mary’s children. The court said that the estate of .Margaret Britton which she had in possession was to be divided “among those who answered the description at the time of her death; and -the property in remainder Is to be divided among those who answered the description at the falling in of . the life estate, and those who legally represent such as -may die during the life of the life tenant,” and that, therefore, Stephen’s daughter Margaret, born of a second marriage, after the death of the testatrix, but during the life of the life tenant, was entitled to a share in the remainder, '“.which opens so as to let in all who answer the - description at the time of -the falling in of the particular estate.” Annable v. Patch (3 Pick. 360) is also cited as an authority for the same rule.
      The case of Worcester v. Worcester (101 Mass. 128) is not at variance with these decisions. There the real estate was directed to be sold as soon as might be advisable, for the purpose of making such distribution. . The court said that the whole real estate might be sold including the remainder, after the life estate of' the widow, and the proceeds applied to the residuary legatee; that it was not a devise of the remainder after the life estate of the widow, but was to take effect and to be divided as a pecuniary legacy, and that “ the fights of the legatees afe fixed according to the time when,they.were entitled to-call for the distribution.”
      I am inclined to think that the.annuity given, to Beatrice Bay Hamilton is a charge upon the residue or remainder of the premises in question. If the bequest had been simply a gift of §1,200 a year, with a direction to the executors to pa.y that sum to the annuitant during her life, it can hardly be doubted that it would have been the duty of the executors to make provision for such payment out of the estate to the exclusion, at least, of the residuary devisees. (Rowe v. Lansing, 53 Hun, 212; Merritt v. Merritt, 43 N. J. Eq. 11.) “If there is a gift of an annuity and a residuary gift, the annuity takes precedence, and the whole loss falls on the residuary legatee.” (Croly v. Weld, 3 De G., M. &.G. 995.) Is the rule made inapplicable by the fact that by his will the testator charged this annuity upon his property in the city of Brooklyn? I think not.. In Pierrepont v. Edwards (25. N. Y. 128) the court said that “ when the testator bequeaths. * ** * a life annuity in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular way or out of a particular fund.” There can be no doubt, I think, that the testator’s intention was that this annuity should be paid “at all events.” I cannot believe that by charging it upon specific property he intended to exonerate the rest of his estate. I know of no rule of law which requires such a construction of this provision of the will. In Pierrepont v. Edwards the direction was to x>ay the testator’s wife an annuity out of income. The income proving insufficient, the principal was held liable for the deficiency. Ho fact appears in that case which materially distinguishes it from this one. The proof shows that the testator’s Brooklyn property at the time of the making of his will was heavily incumbered and largely unproductive. It can hardly be claimed that his intention was that the annuity should be .paid only out of the income of that property or out of income derived from its proceeds if sold, or that the annuity ■ should fail in case the property should be absorbed by the incumbrances. But the claim of the annuitant is subordinate to that of the life beneficiary of the rents and profits. (Conron v. Conron, 7 H. L. Cas. 168.) In that case the testator made specific devises of portions of his real estate. By a codicil he declared, “I charge and encumber all my estates of every description, both real and personal, with the following'legacies.” It was held that the legacies were not a charge on the estates which had been specifically devised.'
     