
    W. Irving Clark, as Trustee of Mart Ann Gillespie, under the Last Will and Testament of Thomas L. Clark, Deceased, Respondent, v. Henry J. Cammann and Others, Appellants, Impleaded with Others.
    
      Will — lapsed legacy—undisposed of personal property — when the next of kin of the testator at the time of his death take — ‘ ‘ lawful representatives ” defined.
    
    A testator, by bis will, which contained no general residuary clause, devised all ■ his estate, both real and personal, to trustees, who were directed to convert the real estate into personalty, and to invest the proceeds and pay the income of the estate to the testator’s wife for life. After the wife’s death the interest of §10,000 of the principal of this fund was to be applied to the use of his niece for life, and after her decease the trustees were directed “to pay over and divide the said principal sum of §10,000 unto and among all her children, share and share alike, and to their lawful representatives forever, as tenants in common, per capita, the issue of any such child who may be then dead to take his or her deceased parent’s share.”
    
      Held, that the postponement of the distribution of the principal of the- §10,000 fund until the death of the testator’s niece, was a necessary part of the scheme of the will, and that, therefore, futurity being annexed to the substance of the gift, no estate in that fund .vested in the children of the testator’s niece, under the will, but their interest was contingent upon their surviving their mother.
    The testator’s niece and widow both survived him; liis niece, who survived the widow, having at the time of his death two children, who, however, died (never having had children) before the death of their mother, who left no children, nor the issue of any children.
    
      Held, that upon the death of the testator there remained undisposed of by the will a reversionary interest in the principal of the §10,000 fund, which would commence in possession on the termination of the life estate, in case the prescribed contingencies did not happen ;
    That, consequently, upon the death of the testator’s niece, without children, or the issue of children, the legacy of §10,000 to such children, or their issue, lapsed, and went to such persons and their representatives as were entitled under the Statute of Distributions at the time of the testator’s death to share in the testator’s undisposed of personalty ;
    That the contention that the words “lawful representatives/’ in the phrase “to all her children, share and share alike, and to their lawful representatives forever,” should be construed to mean next of kin, and that the direction to pay to the lawful representatives of the children should be held to be a substituted gift to their next of kin in case there were no children living when distribution was to be made, was untenable, as, the testator having provided for the contingency of either of his. niece’s children dying leaving issue, it was fair to assume that if he had intended to provide for other contingencies he would have done so hy apt words, and not hy indirection, and for the further reason that there was nothing in the context to change the meaning of the words, “lawful representatives ” from its usual, one of that of executors and administrators;
    That'the words “lawful representatives” were not used to designate, persons-who were to take in the event of the inability of the children of the testator’s-niece, but were intended to characterize the nature of -the estate which such children were to to have after the fund had been paid over to them.
    Appeal by the defendants, Henry J. Cannnann and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 2d day of June, 1896, upon the report of a referee.
    
      Henry A. Forster, John A. Weekes, Jr., and John Mason Knoxy for the appellants Kane and Wolfe.
    
      David McClure, for the appellant Wil’merding.
    - William L. Clark, for the appellant Walter B. Johnson, as committee, etc.
    
      William C. Cammann, for the appellant Cammann.
    
      Mortimer C. Addoms, for the appellant Avery.
    
      Tarrant Putnam, for the respondents Hoffmire and others.
    
      Chas. 8. Martin, for the respondents Kent and others.
    
      Chas. M. Bleeoher, for the respondent Edward M. Clark.
    
      Henry A. Prince and Charles Wheeler Barnes, for Wm. H» Clark and others, respondents.
   Rumsey, J.:

During the year 1853 Thomas L. Clark of the city of Hew York died, leaving a last- will and testament, by which certain trusts were created, of which the plaintiff subsequently became the trustee. He has brought this action, after the death of the beneficiaries of the trusty asking that the court determine who are entitled to the fund now in his hands, and that it adjudge a distribution of - that fund according to that determination. The action requires at the hands of the court a construction of that portion of the will creating the trust.

By the clause of the will in question the testator devised all his real and personal estate to his trustees with directions to convert the real, estate into personalty and to invest the proceeds and pay the income: of the estate to his wife for her life, and after her death the will pro- • vided that, “as to ten thousand dollars of the principal monies to be invested as aforesaid, mv said executors and trustees shall stand pos- . sessed of the same in trust to apply the interest thereof to the use: of my niece Mary Ann, the wife of my executor, George D. H„ Gillespie, for and during, her natural life so as she may not, anticipate the same, and from and immediately after her decease upon trust to pay over and divide the said principal sum of $10,000 unto and among all her children, share and share alike, andto their lawful representatives forever, as tenants in common, per capita, the issue of any such child who may be then dead to take his or her deceased parent’s share.” At the death of the testator Mrs. Gillespie had two sons. Both of them, however, died in her lifetime, neither-having had children, so that at the time of the death of Mrs. Gillespie, in 1894, she had living neither any children nor the issue of' any children. The testator’s widow died in 1872. This being the: state of affairs, the trustee brought this action.

At the hearing before the referee four different sets of people: appeared and claimed to be entitled to this fund of $10,000. One claim was made by those who were either next of kin of the: deceased widow of Mrs. Gillespie’s son or legatees under the will off the deceased father of Mrs. Gillespie’s children. They claimed that, the gift vested in the children at the death of Mr. Clark, and these-claimants as representing them were entitled to the whole principal ' sum of $10,000.

Another claim was made by those who insisted that they were the-next of kin of the children and were entitled to have this money paid to them by virtue of that portion of the will quoted above,, which directed, as they said, that it should be paid to the lawful representatives of the children.

- The remaining claimants were the next of kin or the personal representatives of the next of kin of the testator, and they claimed that this gift to the children never vested, but that it was a lapsed legacy and went to the next of kin of the testator. The dispute between those two sets of claimants was whether the legacy should be regarded as having lapsed at the death of the testator or at the •death of Mrs. Gillespie in 1894. If it lapsed as of the death of the "testator, it went, of comm, to all those who'at , that time were •entitled to his personal estate under the Statute of Distributions. If, on the contrary, it was to be regarded as having lapsed at the time of the death of Mrs. Gillespie in 1894, then it was claimed that the •fund went only to that person who at that time< answered the •description of the next of kin of the testator.

Between these four classes of claims the referee decided that the .gift to the children did not vest, but was contingent upon their surviving their mother; that, as at the death of Mrs. Gillespie there were neither -children nor issue of children, the gift failed, and that, being a lapsed legacy, it was property undisposed of by the will, •and went to those who were the next of kin of the testator at -the time of his death. Whether that conclusion of the referee was collect is the question presented by this appeal.

This question is to be decided solely upon consideration of that qiortion of the will of Thomas L. Clark quoted above. An examination of it shows that the trustees held all the property as one fund for the benefit of the wife of Mr. Clark during her life, and "the fund of $10,000 for the benefit of Mrs. Gillespie only came into existence after the death of Mrs. Clark, the wife of the testator, ■and its existence was dependent upon the survival of Mrs. Clark by Mrs. Gillespie. When, however, it appeared that Mrs. Gillespie had survived her mother, this fund of $10,000 was set apart for her benefit. During her life the trustees were required to pay -the. income of it to her. The will did not give the fund, after her •death, directly to anybody. The provision of the will was that it was to be paid over to and divided among all her children, and that the issue of any child who was .dead was to take his or her deceased parent’s share. That necessarily implies that the children or .the descendants of the children of Mrs. Gillespie were to be the objects of the testator’s bounty. This bounty they were to receive, not by virtue of a direct gift from the testator, but through the medium of a power in trust vested in a trustee, to be executed after the death of their mother, so that the executors and trustees might devote' the income of the estate until the death of Mrs. Gillespie, to such purposes as the direction of ' the testator had required. The distribution, therefore, was postponed as a necessary part of the scheme of the will, and, as has been said, futurity is annexed to the substance of the gift.” The case is, therefore, within that class of cases which establish the principle 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 are included within the class at the date when the ■distribution or division is directed to be made. In such cases the gift is contingent upon the survivorship, and that survivorship at the time of the distribution is an essential condition to the vesting of an interest in the subject of the gift. (Delafield v. Shipman, 103 N. Y. 463; In the Matter of Baer, 147 id. 348; Matter of Allen, 151 id. 243.) This conclusion disposes of the claims of these defendants who insist that they are entitled to take this fund, because it vested in the children of Mrs. Gillespie-under the will.

-But another class of claimants insist that they are entitled to this fund because the testator directed that it should be paid “ to all her ■children, share and share alike, and to their lawful representatives forever.” These claimants contend that the words “ lawful representatives ” should be construed to mean next of kin, and that the •direction to pay to the lawful representatives of the children should be held to. be a substituted gift to the next of kin in case there were no children living at the time when distribution was to be made. An examination of the will shows that the testator provided for the ■contingency which might take place if Mrs. Gillespie’s children ¡should die before her, because he directed that the fund should be distributed among the children and the issue of such children as ■should be dead, the words of the will being that “ the issue of any such child who may be then dead to take his or her deceased parent’s share.” The testator thus provided for the death of either ■of Mrs. Gillespie’s children, leaving issue. If he had intended to provide for any other contingency it is fair to suppose that he would have done it by words apt for the purpose and not by indirection, ¡and it is not at all likely that he intended to use the words lawful representatives” for the purpose of providing for another contingency which was of no particular interest to him and probably never occurred to him. The reading of the clause shows quite •clearly,. we think, that the words lawful representatives ” were not used to signify the persons who are substituted as takers of the gift. The direction to pay is not to the children, or, in the alternative, to their lawful representatives, as would have been the case had those representatives been intended to take in the place of the children, but to pay to the children and their lawful representatives. These words cannot be construed to mean the next of kin in their ordinary and usual significance, because they are-usually construed to mean executors or administrators. (Geoffroy v. Gilbert, 5 App. Div. 98, and cases cited.) Unless their meaning is explained and altered by the context, that signification must be given to them. There is nothing in the context here which would wrest the words from their true meaning, and, therefore, we conclude that they are used here to signify the nature of the estate which the children would take in this fund after it had been paid over to them, and not to specify any individuals who would receive it in case there were no children living. The same construction .was given to substantially the same words by the learned surrogate of this county in Phyfe v. Phyfe (3 Bradf. 45) where' they seem to have been used in the same sense and in almost the same connection. (See, also, Matter of Allen, 15 N. Y. 243.)

We conclude, therefore, that this was a lapsed legacy. Ordinarily, ■a legacy is said to lapse when the legatee has' died before the testator, but the same expression may properly be used to describe a legacy which has failed, either because of its invalidity, or because the contingency upon which alone it was to vest has not taken place. ( Van Wyck v. Bloodgood, 1 Bradf. 154.)

All concede that this legacy having lapsed, it went to the next of kin of the testator, and the only dispute left to be-settled is whether it should go to those persons who answered that description-at the ' time of the, death of the testator, or only to such persons as answered that description at the time when the life estate of Mrs. Gillespie came to an end. Mrs. Avery who was the sole next of kin of the testator at the time of the death of Mrs. Gillespie, claims that the gift lapsed at the death of Mrs. Gillespie, and not at the death of the testator, and that the fund should be given to her, and not to those who, at the time of the death of the testator, would be entitled under the Statute of Distributions.-

As we have seen, the interest of the children, of Mrs.. Gillespie was contingent upon their surviving their mother. Even then there was no direct gift to them, hut a right to receive a portion of the :$10,000 contingent on their living at the time when the life estate ■of their mother came to an end. The only thing which the testator disposed of by his will was this contingent right. He gave to his executors and trustees the title to this property for the purpose of executing the trusts created by the will. They took by that devise, just so great an estate as was necessary to enable them to execute these trusts. That estate was for the life of Mrs. Clark and Mrs. 'Gillespie. How far it extended after the falling in of those two lives, depended upon the existence of the contingency upon which alone the money was payable to the children. If, for any reason, that contingency should fail, the estate of the trustees failed with it. There was left, therefore, at the time of the death of the testator, a residue of the estate which would commence in possession on the termination of the life estates, in case the contingencies did not take effect. This was a reversionary interest in personal property which is recognized by the statutes of the State in regard to personal property as well-as real property. (1 R. S. 773, § 2; Id. 723, § 12.) That reversionary interest came into existence when the will took effect, just as much as did the contingent interest of these children, or the- estate of the trustees. -When it took effect it. vested in those persons who were then entitled to share in the testator’s estate under the Statute of Distributions, and while it could not vest in them in possession until the contingent interest of the children had failed, they did not lose it by reason of the delay, but it ran along, side by" side, with the possible estate to. the children, to take effect or to be destroyed, as the contingent estate of the children failed or became vested.

This interest, therefore, was an estate of the testator, not disposed of by the will, and it follows the usual rule that the personal property of the testator, not disposed of by will, goes to those who are entitled under the Statute of Distributions at the time of his death. The rule in that regard is laid down by the chancellor in the-case of Hoes v. Van Hoesen (1 Barb. Ch. 379). He says: Where a reversionary interest in personal property is not disposed of by the will of a testator, it does not necessarily belong to those who may happen to be- his next of kin at the termination of the particular estate, or interest in such ¡property which is bequeathed by him-, but as an inter-, est in property undisposed of by the will, it belongs to- the widow" and next .of kin of the decedent who were entitled to the distributive shares in such Unbequeathed" interest, at the death of the testator, and if any of them have died without having disposed of their interests therein, their shares go to their personal representatives as a part-of the personal ¡estate of such, decedents.” • (Greenland v. Waddell, 116 N. Y. 233, 245.) This rule of the chancellor is well established, by authority, both in this country and England, as lias been shown by the opinion in the case of Simonson v. Waller (9 App. Div. 503), where the question was thoroughly examined. Some doubt has been thrown upon it by a dictum of Judge Comstock contained in his opinion in the case of Savage v. Burnham (17 N. Y. 561, 573). The circumstances under which Judge Comstock reached' his conclusion upon that point are well stated in the case of Simonson v. Waller (supra). While Savage v. Burnham has been cited often, and followed upon other points, it does not appear that upon the particular point involved here it has ever, been cited or approved. It is noticeable that the conclusion reached by Judge Comstock in that case might equally well have been reached upon the principle that the legacy -of Thomas was undisposed of by the will, and went to those who were the next of kin of the testator at the time of his death, because it so liappéned that the next.'of kin of the testator' at. the time of Ms death who would have taiken this legacy, had it been, regarded as undisposed of then, were the same persons who did take it under the decisión of Judge Comstock, so that while the reason 'given by Judge Comstock was perhaps in conflict with the principle laid down by the chancellor in Hoes v. Van Hoesen, and which we-have reached here, he arrived at precisely the same result. While-We have great respect for the learned judge who wrote the opinion in Savage v. Btirnham,, yet his dictum -on this subject is so greatly adverse to the great- body of authorities, both in this country and in England that W;e cannot yield' to it here, unsupported as it is by any ■ adjudged case.

There was- no general residuary bequest in this will. The only residuum spoken of was the rest and residue of the principal moneys, excluding the $10,000 fund which is the subject - of this actiom. That fund, therefore, went to those whowere entitled under the Statute of Distributions at the time of the death of the testator. Those persons were his widow and next of kin. (Hoes v. Van Hoesen, supra.)

The will provides that the devises and bequests made to Mrs. Clark, the widow of the testator, are intended to be in lieu and satisfaction of every claim of dower and thirds which she might have to his estate or effects, real or personal, or any part thereof. For that reason the next of kin of • the widow have no interest in this, fund, and the conclusion of the referee that it should be divided among the next of kin of the testator at the time of his death, is correct, and. the judgment should be affirmed, with costs.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ,,, concurred.

Judgment affirmed, with costs.  