
    Joseph Benjamin Dimmick, Trustee, Resp't, v. C. Godfrey Patterson, Impl'd., App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    Will—Contingent interest—Directon to divide at future time.
    By testator’s will his estate was to be divided in three parts, the income of one of which was given to his daughter for life, with remainder to her heirs and assigns; the income of another was given to his son until he became thirty years old, when one-half should be given him, and the balance when he was forty, and provision was made in cage he died before reaching either age; the income of the third was given to the widow for life, and on her death the executors were directed to divide it between the son and' daughter, to be governed and affected by the provisions touching their shares. The son lived to be forty-five, but died before the widow. Reid, that his interest in the latter third was contingent upon his arriving at the age mentioned and surviving the widow; that it did not vest until her death, and that an assignment thereof by him carried nothing to the assignee.
    Appeal from a judgment of the special term construing the will of Joseph Benjamin, deceased.
    
      Henry Major, for app’lt;
    
      James B. JEly, for resp’t.
   Barrett, J.

Joseph Benjamin died in 1878. By the third clause of his will he directed the residue of his estate to be divided into three parts. The income of one of these parts he gave to his daughter, Lucretia, for life, with remainder on her death to her heirs and assigns. The income of another of these parts he gave to his son, Joseph R:, until he arrived at the age of thirty years; upon attaining which age he gave the equal half of said part to Joseph R., and his heirs and assigns forever. The income of the remaining one-half he gave to Joseph R. until he arrived at the age of forty years; upon attaining which age he gave the residue of the part to Joseph R. “ and to his heirs and assigns forever.’ Elaborate provision follows in this third clause for the contin-’ gency of Joseph R.’s death before the said part should vest in him either in part or wholly. In the contingency of his death before such vesting, this part is given to Joseph R’s children, if he should leave any him surviving, and to their heirs and assigns forever. If be should leave a widow, but no children, another disposition of the part is made, and if he should leave neither widow nor children there is still another disposition. The income of the third part of the residue Joseph gave to his wife during her life, and upon her death this third part is disposed of by the fourth clause of the will, which brings up the question presented for our consideration. This fourth clause reads as follows:

“ Fourth. At the death of my said wife I direct that the said part appropriated, as aforesaid, to her use shall be equally divided, and the one-half thereof be added to the said part appropriated, as aforesaid, to the use of my said daughter, and the other half thereof be added to the said part appropriated, as aforesaid, to the use of my said son, and each be governed and affected in every respect by the provisions of this, my will, touching the said last two mentioned parts respectively, as fully and particularly as if such additions had originally constituted portions of said parts.”

Joseph R. Benjamin lived to be forty-five years of age, but he died before his mother, the testator’s widow. The appellant’s contention is that, upon Joseph R.’s attaining the age of forty years, he acquired a vested interest in one-half of this third part, the income of which was so given to his mother for life, and that, consequently, his assignee, Patterson, became entitled upon her death to take and enjoy so much of that one-half as was attempted to be assigned to him.

We cannot agree-^ith the appellant in this contention. It seems to us very clear that Joseph R.’s interest, under this fourth clause, was contingent and not vested. There are no direct words of gift, and none from which a present gift can be implied. The intention of the testator is apparent throughout. As to the part first appropriated for the use of Joseph R, the intention is not left to inference or implication. It is expressed in plain language, namely, that such part shall not vest until he attains a certain age. Thus the vesting was to take place only when he became entitled to receive the principal of the part. In case of his death before that time, the part was to go to his children. If he had no childdren, it was then to go as directed in the later provisions of the third clause. The same intent pervades the fourth clause, upon which it will be perceived the third clause is engrafted. Upon the death of the widow the executors are there, that is, in the fourth clause, directed to divide the part previously appropriated to her use, and to add one-half thereof to the part first appropriated to the use of Joseph R, subject, however, to the provisions of the third clause. We are asked to construe this direction, to so divide and add upon the death of the widow, as equivalent to a direction to divide and add upon the death of the testator, and as thus effecting a present addition to the part first appropriated to the use of Joseph R, subject only to the life estate of the widow.

Such an interpretation would be contrary to the plain intention of the testator; and contrary, also, to well-settled rules of construction. The general intent of the testator was, as we have seen, to postpone the vesting until Joseph should become entitled to receive the principal. If he never became entitled to receive such principal, the testator provided most minutely for its disposition. It would be strange, indeed, if the testator’s intention, so clearly expressed in the third clause, were suddenly to change when giving the directions contained in the fourth clause. No such change is suggested in this latter clause. The vesting thereunder is plainly to take place, as in the third clause, when Joseph R. becomes entitled to receive the added principal, namely, upon the death of the widow, and then only upon his attaining the prescribed age. If the widow had died before he had attained that age, the added part would only have vested when the original part vested, namely, upon his arrival at the prescribed age. The part to be added could not, therefore, have vested in Joseph B. at the death of the testator, nor upon his arrival at the age of forty years, in the lifetime of the widow, for the reason that it was not to be added to the original part, nor was it to come under the^ provisions of the third clause of the will until the death of the' widow. The contingency provided for in the third clause is Jos-, eph B.’s arrival at a certain age. That provided for in the fourth clause is the death of the widow plus the contingency contained in third clause. This was the testator’s intention, and it was in harmony with the rule that where the only gift is found in a direction to divide at a future time, the gift is future and not immediate. Goebel v. Wolf, 113 N. Y., 412; 23 St. Rep., 176; Warner v. Durant, 76 N. Y., 133; Smith v. Edwards, 88 id., 92.

This general rule is subject to the qualification that a contrary intention may be collected from particular circumstances. Leake v. Robinson, 2 Mer., 363. But every circumstance here points to an intention in precise accord with the rule. The gift is not to be severed instanter from the general estate for the benefit of the legatee, as in Warner v. Durant, 76 N. Y., 136, nor do the terms of the bequest import a gift and also a direction to pay at a subsequent time, Manice v. Manice, 43 N. Y., 369.

Under this will the title was vested in the executors for the purposes of the trust in favor of the widow, and it is only upon the termination of this trust that the remainder is to be divided into two parts and added to the original parts appropriated to the use of the testator’s son and daughter. This remainder, to be so divided and added, vested only upon the death of the widow, and consequently, Joseph B.’s assignment, made prior to his mother’s death, conveyed nothing to the assignee.

The judgment appealed from should, therefore, be affirmed, with costs.

Yah Brunt, P. J., and O’Brien, J., concur.  