
    BRADLEY SMITH, as Executor, etc., Appellant, v. CLARA I. ROCKEFELLER and others, Respondents.
    
      Probationary period fixed by will—bequest contingent upon— how rested—Death of beneficiary—effect of—When executor changed personally with costs.
    
    When, a testator leaves to his son the income of $1,000, to be paid to him by his ' executors during a certain time, and directs that, at the expiration of that time, if the son has reformed, he be paid the $1,000, and otherwise, that it be paid over to other parties; held, that, the son dying before the expiration of the time without having reformed, it was the intention of the testator that the probationary period should end with the life of the son, and that the $1,000 never vested in the son.
    When, in an action brought for the construction of a will by the executor, the court finds that it was not a proper case to apply to the court therefor; that the plaintiff has used the funds of the estate in his individual business; and refuses to find that plaintiff acted in good faith, or was ready and willing to pay oyer the funds to the persons who might be entitled thereto; held, that plaintiff was properly charged personally with costs, and five per cent additional costs.
    Appeal from a judgment entered upon the decision of a justice at Special Term, giving a construction to the will of Granville Rockefeller, deceased, and giving judgment against the plaintiff personally, for $1,071.33, with costs. The action was brought to obtain a judicial construction of the following clause of the will of the plaintiff’s testator, who died April 2, 1870 :
    “ To Philip Eugene Rockefeller I give and hereby direct my executor to pay the interest of $1,000 to said Philip Eugene yearly, for the term of five years; commencing at my decease, that, at the expiration of the said five years, if the said Philip Eugene .shall have then reformed, become temperate in his habits, honest, industrious and a respectable man, then, and in that case, I order and direct that my executor pay to him the said $1,000 in three equal annual payments; hut if, at that time, he be not reformed, and is still intemperate or dishonest, then I direct and it is my will that my executor pay him the interest on the said $1,000 annually for three years thereafter; I further order and duly constitute my executor the sole and proper judge of the reformation and conduct of the said Philip Eugene; and at the expiration of said five years pay him as above stated the $1,000 in the manner there stated, if he be satisfied that the reformation answers the above requirements, but if, in his judgment, it should fail, in that case pay the three years’ additional interest as above stated, and divide the said $1,000 equally among my other three children or their heirs.”
    The justice at Special Term found, among other things, that the plaintiff had appropriated and used in his personal business the said $1,000, paying the interest of $1,000 from year to year to Philip Eugene.
    That the defendants were entitled, to recover of the plaintiff $1,000, less $75.26, paid for funeral expenses of the said Eugene, who died August 23, 1872, i. e., $924.80 with compound interest thereon to be computed with periodical rests biennially, amounting in the whole to the sum of $1,071.33, together with costs and disbursements and five per cent upon the recovery as additional costs. From the judgment entered in such proceedings, the plaintiff appealed to this court.
    
      Ma/yJiam <& Krum, for the appellant.
    
      N. P. PLinmam,, for the respondents.
   Landon, J.:

The testator only gave the interest of $1,000 to Philip E, Rocke feller; this was to continue for five years; if Philip should then have reformed the principal was to he paid him; if he had not reformed, the interest was to be paid him for three years longer, and then the principal was to be given to these-defendants.

As Philip died within the five years without having reformed, the condition precedent upon which the gift of the principal to Philip depended, did not, and could not happen, and the gift of the principal never vested in Philip E. That is to say, no gift of it was made to him. The bequest of the same over to these defendants took effect, and they became entitled to the money. The five years during which the executor was to pay Philip E. the interest, was a probationary period given him in which to reform. It is reasonable to suppose that the testator intended this probationary period should end with the life of the party whose reform was desired, and the payment of interest should also end. Mo testator can, by implication, be held so stupid as to have intended that his executors should hold funds in suspense, contingent upon the reformation of a person after his decease. The court was right in giving judgment in favor of the defendants. The learned judge, however, refused to find that this was a proper case for the plaintiff to apply to this court for a construction of this will. He found that the plaintiff had used the principal sum in his business. He refused to find that he was entirely responsible and ready and willing to pay the $1,000 over to the persons who might be adjudged entitled to the same, and refused to find that the plaintiff acted in good faith in bringing this action. He charged him personally with the costs, granted five per cent additional allowance of costs, and charged him interest compounded, with biennial rests. We have carefully examined the case, and think the learned judge was warranted in the view he took of the plaintiff’s conduct, and was therefore warranted in the j udgment he awarded. The effect of the finding is, that the plaintiff did not bring this action for the purpose of ascertaining who were entitled to the fund, but for the purpose of preventing those lawfully entitled to it from promptly obtaining their own; that he might himself continue to use a fund he had no right to use at all; that he preferred to waste the fund in costs rather than pay it to its rightful owner; that any day of payment was inconvenient, and therefore unjustly sought to be postponed.

The judgment should be affirmed, with costs against the plaintiff personally.

Present — Bookes, P. J., Countryman and Landon, JJ.

Countryman, J. dissented.

Judgment affirmed, with costs.. 
      
       Caw v. Robertson, 1 Seld., 125.
     
      
       2 Wms. Exrs. (5th ed.), 1132.
     