
    In the Matter of the Judicial Accounting of Martin J. Keogh, as Sole Surviving Trustee of the Last Will and Testament of David Jones, Deceased. Julia D. Haviland and Others, Appellants; Atala W. Thayer and Others, Respondents.
    Second Department,
    April 20, 1906.
    Will — trust construed — when contingent remainder does not vest until time of distribution i— when remaindermen take per stirpes — unpaid income of life beneficiary goes to his personal representatives.
    When a testator, having a. brother and four sisters, creates five separate trusts; one for the benefit of each of them, and provides that at the, death of each beneficiary the corpus and any income thereof remaining of his or her trust estate shall be paid “to the lawful children” of the beneficiary in equal portions, etc., that if the beneficiary die leaving no child or grandchild'surviving, the, corpus and income remaining be paid “ to the children ” of the other beneficiaries, ‘' the child or children of each to take an equal portion thereof,” the remainders in the trust estate of the brother, who died without issue, do not ’vest in the remaindermen until the time, of distribution.
    Such remaindermen (children of the beneficiaries of the other trusts)- take- the ■ corpus and income accruing subsequent to the death of the life beneficiary per stirpes and not per capita, for the words “ the child or children of each, ” refer to the children of each sister, who thus take by representation.
    But income accruing to such life beneficiary during his life, though unpaid, vested in the beneficiary and passes to his personal representatives, for otherwise the will would offend the statute against unlawful accumulations, and a construction which would invalidate it will not be preferred.
    Appeal by Julia D. Haviland and. - others from various portions of a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 17th day of May, 1905. ■
    
      Charles M. Cannon, for the appellant Julia D. Haviland.
    
      Walter R. Beach, for the appellants Griffith.
    
      David McClure, for the appellant Walter D. Starr.
    
      John M. Digney, for the appellant Chandler D. Starr.
    
      Shiland, Shoemaker & Hedges, for the appellant William T. Dannat.
    
      
      Wilfrid N. O’Neil, for the appellants Cannon and another, as administrators of David J. Dannat, deceased.
    
      Henry A. Monfort, for the respondents Thayer.
    
      John P. Elder, respondent in person, as executor of John J. Jones, deceased.
    
      Townsend Scudder, for the respondent Mary Thayer Scudder.
   Miller, J.:

The testator, the construction of whose will is involved in this appeal, died January 17, 1881, leaving as his only surviving next of kin John J. Jones, a brother, and Mary J. Griffith, Susan J. Dannat, Jane J. Thayer and Margaret A. Jones, sisters. The particular paragraph of the will to be construed is as follows :

“Sixth. I give, devise and bequeath to the said "Wilson G. Hunt, Hamilton Blydenburg, Alexander Thayer and John J. Jones, Executors and Trustees as aforesaid, the remaining one equal fifth part of all my estate, real and personal (after payment-of debts and funeral expenses as aforesaid). To have and to. hold the same to them and the survivors and survivor of them for and during the life of my brother John J. J ones, in trust, nevertheless, to take possession of the real estate, keep the same in suitable and proper repair, keep the buildings thereon well insured and to let or lease • the same from time to time and for such terms of time within the lifetime of my said brother as to them may seem best and for the best rent that can be obtained therefor, -to keep the personal estate safely and securely invested and to collect the rents and profits of the real estate and the interest, dividends and income of the personal estate and after paying all taxes, assessments, expenses of repairs, insurance and all other legal and necessary charges and expenses pay over the residue or net proceeds of said remaining fifth part of my estate so given to them in trust as last aforesaid to my said brother John J. Jones semi-annually during his life, and immediately upon his death the said trustees, the survivors and survivor of .them shall grant, convey, transfer and'deliver over the said remaining one-fifth part of my estate so given to them in trust as last aforesaid and any income thereof remaining in their hands to the lawful children of my said brother in equal portions share and share alike, .and to the child or children of any who may be dead, the grandchild or children in such case to take the same share or portion that the. parent would'have taken if living. In case my said brother John J. Jones shall die leaving no child, children, grand child or grand children him surviving, I direct the said trustees then to grant, convey, transfer and deliver over the said remaining one-fifth part of my estate so given to them in trust as last, aforesaid, together with. any incomé thereof remaining in their hands to . the children of' my sisters hereinbefore mentioned, the child or children of each, to take an equal portion thereof.”

In like language he creatéd four other trusts of the remaining four equal fifth parts, of his residuary estate for the benefit of each of his four sisters respectively, using the same language in the disposition of the remainders in each case. The brother John J. Jones died November 14,. 1904, leaving no descendants. The sister Margaret never married. The sister'Jane J. Thayer had seven children. The sister Mary J. Griffith had four-,children, one of whom pre.deceased the said brother John J. Jones, leaving no descendants, and the sister Susan J. Gannat had four children, one of whom predeceased the said brother John J. Jones, leaving two descendants.

Three questions are argued on this appeal, viz.: First, did the remainder of the trust estate for the. brother John J. Jones vest upon the death of the testator ? Second, in the division of said remainder did the testator intend equality among his nephews, and nieces, or equality among his sisters’ children by classes, each class including the child or children of a sister ? and, third, to whom did the accrued income not distributed at the time of the death of said John J. Jones pass ?

We think the learned surrogate correctly held that there was no vesting of the remainders until the time for distribution arrived, and his opinion (47 Misc. Rep. 37) is so satisfactory upon this point that we desire to add nothing to it. W.e do not agree, however, with the construction adopted respecting the division of the remainder. It may be granted that, in the absence of anything in the will evincing a contrary intent, the remaindermen would take equally, and it may also be assumed, that they would take equally but for the phrase “ the child or children of each to take an equal portion thereof,” but we think that this phrase when construed in the light .of the. manifest testamentary scheme evinces an intention to treat the child or children of each sister as one class, and to divide the remainder equally among the different classes. The-expression “jper stirpes” may not he strictly applicable to this case, as technically said children do not take by representation, and yet we think in the mind of the testator the children of each- sister were regarded simply as the representatives of such sister. As the learned surrogate aptly says, the will clearly shows that the testator stood in the attitude of parent to his brother and sisters, and it is clear that he intended to divide his estate equally among them-, preserving it so far as he could by the creation of trust estates terminating upon the death of each respectively. There is nothing in the will to suggest that-the testator had nephews and nieces in mind other, than as representatives of their parents, or that he desired upon any contingency a distribution of his estate other than in accordance with his paramount intention of preserving equality among the brothers and sisters and their descendants as representatives. With this in mind We are prepiared to determine what he meant by the phrase “ the child or children of each to take an equal portion thereof,” because it cannot be supposed that these were idle words. Had said phrase been omitted there might have been force in the argument that respecting the share of each brother or sister dying without descendants he intended to depart from the •general scheme of preserving equality among brothers and sisters, and the expression must have been used either to make such intention clear or to evince a contrary intent. If it was used to make clear the intention claimed by the respondents, it was certainly very inaptt. The word-“ each ” refers to sisters, and the-expression should be read, “ the child or children of each sister to take an equal portion thereof.” .Does the equality sought to be maintained refer to the sisters or the children ? If he had in mind simply the children it would ‘have been very easy to have provided for a distribution among his nephews and nieces equally.” He does not say that “ each child, shall take an equal portion” nor that “ the children of each shall take equal portions.” The words “ child ” and children of each ” are used in the alternative and plainly refer to a class. It will not be profitable to discuss the rules which have governed the descent or distribution of intestates’ estates, or the authorities bearing on such questions, because all agree that in case of a will the intention of the te'stator is controlling. For cases analagous to the case at bar, see Ferrer v. Pyne (81 N. Y. 281) and Vincent v. Newhouse (83 id. 505). It is true that respecting the share of each brother or sister dyings leaving descendants, he provided by apt language’for representation among such descendants, so that they should take “per stirpes ¡ ” but the fact that he omitted to provide for representation, so that the child or children of a child dying should take the rihare of the parent in the- contingency which has happened, and which he may well have regarded as remote;, does not militate against the position that he intended to treat the child' or ’ children - of each sister as a separate class. This will was executed in 1866, and in the absence of anything to indicate the contrary, it must -be supposed that he considered his prospective nephews and nieces as representatives of parents, among whom he desired equality. As the language employed, construed according to its grammatical construction, evinces such' intention, and as this construction is in harmony with the whole testamentary scheme, it should tie adopted.

As to the third question, W6 ’think thaf the conclusion of the learned surrogate, that the unpaid income accrued p'rior-to the death of" said John J. Jones passed to his personal representative, is correct. Although the will provided for semi-annual payments of income, in, the absence of anything to the contrary, it must be assumed that the testator intended the immediate vesting in the life beneficiary of all income upon its being paid in. (Smith v. Parsons, 146 N. Y. 116.) The postponement of'such vesting, for however s'hort'a time, would offend the statutes against unlawful accumulations. (1 R. S. 773, 774, §§ 3, 4, revised in Pers. Prop. Law [Laws of 1897, chap. 417], § 4; 1 R. S. 726, §§ 37, 38, revised in Real Prop. Law [Laws of 1896, chap. 547], § 51; Pray v. Hegeman, 92 N. Y. 508.) There is nothing in the will showing an intention to postpone the immediate vesting of income, unless"it be found in the Words “ together with- any income thereof remaining in their hands,” found in the provisiotis directing the distribution of the remainder upon the death of said John J. Jones. As the. learned ’surrogate remarked, those words may well refer to the .time of dis‘tfibution, for obviously the testator must have known, that some time must elapse between the death of Said John J. Jones and said distribution; but, in any event, an expression which might refer to either the death of the life beneficiary or the distribution of the remainder, found in the clause providing for such distribution, should not be given an effect which would invalidate the plain disposition of the income during the term of the trust provided in another part of the will.

The decree should be modified to the extent of providing that the corpus of the trust estate created by the 6th paragraph of the will, together with all income thereon which has accrued subsequent to the death of the life beneficiary, be distributed among the nephews and nieces of the testator living at the time of the death of said life beneficiary, or to the personal representative of any since dying, in the following proportions: One equal third part thereof to the children of Mary J. Griffith; one equal third part thereof to the children of Susan J. Dannat; one equal third part thereof to the children of Jane J. Thayer, and as modified affirmed, with costs to all parties payable out of the estate.

Hirschberg, P. J., Jenks, Hooker and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Westchester county modified in accordance with opinion of Miller, J., and as modified affirmed, with costs to all parties payable out of the estate. Order to be settled before Miller, J.  