
    Mary Ann Brown, as Executrix, etc., of Helen Brown, Deceased, Plaintiff, v. Melville Brown and William Harman Brown, Individually and as Executors and Trustees, etc., of Stewart Brown, Deceased, and Others, Defendants.
    
      Will — time of vesting of shares to be created by executors under a direction to divide-the estate—power in trust.
    
    The will of a testator, after directing the payment of his debts and funeral' expenses, directed his executors “todivide the aggregate into as many equal, shares or parts as there shall be then living children, or the issue of deceased, children of mine; such issue of each deceased child to represent one share in such division,” and although giving the executors, in a subsequent clause,, authority “to collect the proceeds, rents, issues and profits,” nowhere provided what disposition should be made of them when collected.
    
      Held, that the estates given, in the several shares into which the property was to be divided by the executors, vested in the distributees at once on the death of" the testator, and that the vesting was not postponed until the division was. actually made;
    That this view was supported by the fact that the testator in á subsequent clause-of the will provided for the creation of a trust for the share of any distributeewho might be a minor at the time of the testator’s death.
    
      Semble, that no trust was created, but that a power in trust only was given to-the executors.
    Submission of a controversy, upon an agreed statement of facts,, pursuant to section 1279 of the Code of Civil Procedure.
    
      Herbert B. Turner, for the plaintiff.
    
      Henry B. B. Stapler, for the defendants.
   Patterson, ,J.:

, It appears by the agreed statement of facts contained in the submission herein that the plaintiff is the executrix of, and residuary legatee under, the will of her sister Helen Brown, who was one off the nine children of Stewart Brown, deceased. The defendants Melville Brown and William H. Brown are the executors of the last-will and testament of Stewart Brown, and it appears that they have-administered and distributed the estate of their testator ■ with the= exception of a sum of $16,000 capital of a fund reserved in their-hands for the payment of an annuity to an annuitant now deceased,. certain other personal property of the value of $7,000, and certain real estate in New Jersey.- The plaintiff claims to be entitled, as executrix, etc., to the sums of $1,884.84, being one-ninth of the $16,000, and of .$777.77, being one-ninth of the $7,-000 of personal property, and judgment is demanded therefor.

The plaintiff’s right depends altogether upon the construction to be given to the will of Stewart Brown. The one-ninth now claimed by the plaintiff is that to which her testatrix was entitled under the will of her father, provided her interest vested immediately upon his death; and we think there can be no question that it did so vest, and that she could dispose of the" same by her will. The intention of Stewart Brown is unmistakably plain. It was to have his whole estate divided (less debts and funeral expenses) among his nine children, and in case any one of these children should have predeceased him, the issue of such pre-deceased child to stand in his or her place. That is the only interpretation that can be given to the 2d clause of the will which directs his executors as follows : “ Thereupon to divide the aggregate into as many equal shares or parts as there shall be then living children, or the issue of deceased children - of mine; such issue of each deceased child to represent one share in ■such division.”

There is nothing in any provision of the will to indicate in any way that", the vesting in interest of the shares should be postponed until after the mere administrative act of.making a. division should be performed by the executors; nor is there any interposition of a trust estate of such a character as to prevent such shares vesting at once in interest. Indeed it is more than doubtful whether- any valid trust is created by the will at all, although the gift in the 2d clause is in form “in trust” to convert, etc. In that 2d clause there is no gift of the rents, issues and profits, and, there- < fore, under the Revised Statutes, that clause, standing alone, would create merely a power in trust. At the end of the 1st paragraph of the 5th clause of the will there is an authority given to the executors, as such, “ to collect the proceeds, rents, issues and profits,” but nowhere is there anything said as to what disposition- shall be made of' the rents, issues and profits when collected. They are neither to be applied to the use of any person during life, nor to* accumulate for any purpose, nor within any limit, prescribed in the" statute relating to the creation and division of estates. But whether there was or was not a trust, the whole duty to be performed by the executors was only to convert the estate into money or securities and make a division. The real effect of the contention of the defendant is that a trust was created to divide the property, and to commence at the time of the death of the testator, and that the shares could not vest until the division was made. That construction would render inalienable each share while the trust was being performed, and the entire income of the property would, therefore, accumulate until the division should be completed. Such a scheme would be manifestly illegal, and no such intention on the part of the testator is to be presumed.

It was held in Manice v. Manice (43 N. Y. 303) that when shares in real or personal property are disposed of by a will, and such shares are to be ascertained by a division, the interest of every legatee in the property passing tinder the will and to be divided, is a vested interest before the conversion or division, although it is not to take effect in actual enjoyment until the time appointed for the division arrives. We can find nothing in the présént will that annexes futurity to the vesting in interest of any one of the nine shares into which Mr. Stewart. Brown by his will directed his property to be divided. His intention that it should vest immediately is emphar sized by the 3d and 4th clauses of the will. He provides for the creation of trusts of the shares of any child or distributee who might be under the age of twenty-one years at the time of Ms, the testator's, death, tints indicating that it was the intention that the interest should vest as of the time of his decease. A provision is also made for the support and maintenance, out of the share so held in trust, of the infant to whom such share belongs.

We think it is too clear for denial that all these interests vested at the time of Stewart Brown’s death, and that the share of Helen Brown passed under her will to the plaintiff.

The plaintiff should have judgment upon the submission as asked for, with costs.

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

Judgment ordered for plaintiff, with costs.  