
    In the Matter of the Judicial Settlement of the Account of William E. Murphy, as Sole Surviving Executor, etc., of Thomas Murphy, Deceased, Respondent. Rebecca O’Brien, as Administratrix, etc., of Mary Rebecca Murphy, Deceased, and Thomas Joseph Cunningham, as Executor, etc., of Eliza Cunningham, Deceased, Appellants; Claude M. Becker, and Others, Respondents.
    Second Department,
    October 11, 1907.
    Will construed — when remainders vest -v- lapse of contingent remain- ■ der — appellate court. may find*' admitted fact — accounting — when . disbursements of trustee chargeable against general estate.
    A will made by the testator on his death bed provided: Sixth, that certain lands be held in trust, the rents and profits payable to. the testator’s són D., if living at his death, for his natural-life,'remainder at" his death to his children or their ' issue, if living, but if said’D. should die before the testator, the lands were to go to his Children or their issue, if any, but if D. died, without issue the lands to be sold and the proceeds, added to the,testator’s personal estate to.be disposed of “as hereinafter- directed;” seventh, that the residue of the real estate wás to be sold by the0executors as they deemed expedient, the proceeds to be added to the personal estate;disposed 'of as hereinafter directed, the testator’s widow to have the rents, and profits prior to the sale; twelfth, thatfhe ■ residue of the personal estate, “including the proceeds of the real'estate hereinbefore directed to be sold,” was to be given to the testator’s wife, in trust to pay the income during, her life to the testator’s sons and daughters .(with -the ■ ■ exception of D.), with a power in the widow to dispose of the property during her. lifetime or by will, and in default of such disposition by' the widow, the ' property to go to the four children named in this clause, or their issue,, and in default of issue to the survivors. . The son D. survived the testator, but died ■ without issue after the death of the testator’s widow,, who made no disposal of . the property under the 12th clause. The lands held in trust for D. had not been sold. . , '
    
      Held, that the remainders in the land's held in trust for the testator’s son D. ' vested on D.’s death and not at the testator’s death or that of his widow;
    That one of testator’s sons entitled to take under the 12th clause of said will having died without .issue before the death of D. Was not vested with any inter- - est in the lands held in trust for D., and could not.pass any interest therein by will. • .) •
    
      Held, further, that where the surrogate by error neglects to find a fact- admitted by all parties at trial, the order entered by the Appellate Division on appeal ' from the surrogate’s decision should rectify the error by Supplying the finding,
    
      
      B'.eld, further, that where on the termination oE a trust created by a certain clause of the will the fund went into the residuary estate also held in trust, the executors’ expenses on accounting in the first trust should be paid out of the general estate.
    Appeal by Bebecca O’Brien, as administratrix, etc., of' Mary Bebecca Murphy, deceased, from á decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 5th day of March, 1906, settling the. accounts of William E. Murphy, as executor, etc., of Thomas Murphy, deceased.
    Also an appeal by Thomas Joseph Cunningham, as executor, etc., of Eliza Cunningham,' deceased, from so much of said decree as permits the said William E. Murphy, as executor, to reimburse himsel-f for certain expenses incurred in a litigation.
    
      Henry B. Johnson, for the appellant Rebecca O’Brien.
    
      William Sullivan, for the appellant Thomas J. Cunningham, as executor.
    
      A. Dudley Britton, for the respondent William E. Murphy,. as executor.
    
      Edward J. Connolly, for the respondents Claude M. Becker and others.
   Hooker, J.:

Thomas Murphy, the elder, died in Brooklyn in the year 1867, leaving a last will and testament which was duly admitted to pro■bate in Kings county; letters of administration thereon were issued to his widow, Eliza, and his son, William E. Murphy. At his death the testator left him surviving his widow, Eliza, and liis sons, William E., Thomas, Frederick and Daniel, and his daughters, Eliza and Augtista.

The son Thomas died in 1871 without issue, leaving by will the interest he had, if any, in the Water street property, the subject of the provision of the 6th paragraph of his father’s will, to which reference is made hereafter, to Susan Strain. The decree Under review awards her no interest in the Water street property, and she has not appealed therefrom.

• Eliza, the widow of Thomas' Murphy, the-elder, died in 1891 without having disposed, of any portion of the-estáte of her deceased husband, either during her lifetime or by -will.

The daughter Augusta, whose name by marriage became Becker, died in 1892, leaving a will by which William V. Becker, Joseph F. Becker, Jr., and Claude M. Becker succeeded- to all her interest in the premises in question.

The son Frederick died in 1897 without issue,' leaving a will under which his widow, Mary B- Murphy, succeeds to his interest in the premises. She died in 1901 intestate, leaving Bebecca. O’Brien,.-the appellant, her sole'heir at law and néxt. of-kin, who became administratrix of her estate.

Tlie son Daniel died in 1898 without issue.

The daughter Eliza, whose name by marriage became Cunningham, died in 1901, leaving a will-by which Thomas J. Cunningham,! Mary G-. Cunningham and Elizabeth B. Cunningham succeeded to .her interest in the premises.

The solution of tlié questions in relation, to the will of Thomas Murphy, the elder, depends upon a construction of the 6tli, 7th and 12th clauses thereof, which read as follows;

“Sixth. I give and devise-my house and land.in Water street, in the city, of Flew York, to Patrick O’Brien, of the city of Brooklyn, in- trust to receive the rents' and protits thereof, and pay the same to my son Daniel,-if he be living at the time of my death, for and during his natural life, and in casé of his death, if he.survive me, I • ■give and devise tlie same to his children, if he has any living at that time and the issue .of such as may have died leaving issue, such issue to take the share his, her or their parent would have received if living, and if lié shall have died before me I give and devise tlié same to. his children, if lie shall have left any, and the issue of suelvas shall have dic'd leaving issue, such issue to take the share his, her or their parent would have received if living, and iri case of.'the- death of my •said-son without leaving issue I direct the said house and land to be sold and the proceeds thereof to be added to my personal estate and disposed of as hereinafter directed.
Seventh. I order and direct the residue of my real estate to be sold by my executors, ..as soon. as they may deem expedient after my death, and the proceeds to be added to my personal estate and disposed of as hereinafter directed ; and until such sale I give and devise the rents, issues and profits thereof to my wife Eliza.”
Twelfth. I give the residue of my personal estate, including the. proceeds Of the real estate hereinbefore directed to be sold, to my said wife Eliza, in trust to invest the same at interest, and pay the income thereof during her life to my said two sons, Thomas and Frederic!^, and my said daughters Eliza and Augusta, and any portion of the principal, in her discretion, in such shares and at " such times as she shall see fit;. and also on the further trust and with full power to dispose of the same to and among my said children" in this item named, and their issue in such sums and proportions as she shall see fit, in and by her last will and testament or by an aj)pointment in the nature of a.last will, and testament, and in default of such disposition I give and bequeath the same to my said. four cliildren in this item named and the issue of such as may have died leaving issue — the said issue to take the share liis, her or their parent would have received if living and in default of leaving such children or issue to the" survivors or survivor of my said children.”

William E. Murphy, the surviving executor of the will of Thomas Murphy, the elder, has possession of the Water street property, and . had in hand at the- time of the decree a certain balance of rents 'thereof, but had not sold’the Water street property under the power given' him under the will.

The learned surrogate decided that the vesting of the remainder did not take place upon the testator’s death • nor at the time of the death of his widow, but rather upon the death of the son Daniel, and hence the Cunningham heirs and the Becker heirs, deriving their respective interests from the daughters Eliza and Augusta would each be entitled to one-half of the Water street property.

Rebecca O’Brien, claiming through the son Frederick, appeals from the decree. The questions raised are "two :

First. Was the .appellant, Rebecca. O’Brien, the sole next of kin and heir at law of Mary Rebecca Murphy, the devisee of.the son Frederick Murphy ? The findings of the learned .surrogate do not include one to that effect"; the proposed findings of the appellant did, however, include one to that effect, but this was refused and the appellant has excepted to such refusal. The .refusal of the court to. find this as a fact is clearly an oversight for the fact was admitted upon the trial in practically the words of the proposed ' finding.. The order entered upon the decision of this appeal should., therefore, rectify the error¡by supplying such finding of fact.
' Second. Whether Frederick Murphy, under whom the appellant claims, had ;a' vested interest in ..the Water street property or its proceeds at the time of his death, and if so, what that interest was ?

If the remainder in'. the Water street property vested upon testator’s death, .then,, under paragraph 12.of the will, Bebecca O’Brien, the plaintiff, claiming under Frederick G. Murphy, would be entitied to one-fourtlv; Susan Strain, claiming under Thomas Murphy, would he. entitled to one-fourth; the Cunningham heirs-, to one-' fourth, and the Becker heirs to one-fourth. If such vesting took place at the death of Eliza Murphy, ..the widow,' then - Bebecca O’Brien . would • be entitled to one-third, the Cunningham heirs to one-third, and the Becker heirs- to one-third. If, however, the vestingfdid not take place until the death óf Daniel, the Cunningham, heirs would be entitled .to one-half and the Becker heirs to' one-half as the learned surrogate decided. .

The remainder did not vest xipon the death of Thonias Murphy, the elder, the testator. ' The will was-made on his deathbed and within two days of his death. It could hardly, have'been in his contemplation that this remainder should vest upon his. death, else lie would, not have been careful to provide, in the 12th paragraph that in case any of the four children there named should die leaving no issue, •the residue óf the estate should' go to the survivors of- them ; and that the Water street property was contemplated with other-property by the direction of that paragraph, is shown by the reference to the proceeds of the' real estate theretofore in the will directed to be sold, which included this- property.-

Had Daniel died without issue- before, the death of the widow Eliza no element of dotibt could have existed in relation- to the, disposition of the proceeds oí the Water street property, for under the scheme of the will, if Daniel had died before the widow, without issue, the property was- directed to be sold and.the pfocéeds td be added tó.thé personal estate and disposed, of- according to the 12th paragraph, namely, in trust to-the widow for the- four.: children named in the 12th paragraph, the trustee having, power to- dispose Of it during her life Or by will; and in cáse she left no will the remainder of this personal estate was to go to the four children there named, provided they were living at the time of the death of the widow Eliza, or left issue, in which case the issue would take the. share of his or their parents; and if any of the children died without issue, the remainder of-the residuum of the personal'estate should go to the surviving of the four children. If, then, Daniel had died without issue, before the widow Eliza, instead of subsequent to her death, it must be entirely clear that upon the death of the widow the remainder of the personal estate should go to the son Frederick and the daughters Eliza and Augusta, Thomas having died without issue before the widow and before Daniel. The 12tli paragraph must have been written in contemplation of the possibility of the death of Daniel without issue, subsequent to the death of the widow; and the time when- the testator intended the persons mentioned in the 12th paragraph should reap the benefit of the Water street property, in case of Daniel’s death without issue, is evident from the direction that this property be sold upon Daniel’s death without'issue, and the proceeds be added to his personal estate and disposed of as directed in the 12th paragraph; the sale of the Water street property was not permitted until after Daniel’s death without issue, and hence the proceeds thereof, as personal éstate, could not find their way into the residuum provided for in .the 12th paragraph, nor benefit any of the persons, named therein until the death of Daniel without issue.- The genéral intent, I take it,' of the 12th paragraph is to give such property as the children might be entitled to thereunder to them or their issue or to such as survive at the time such property fell in, and this is especially true of all property that might fall in before the death of the widow Eliza, for the intent is very clearly expressed that such property as she held in trust, and as was undisposed .of by her, should be on her death divided only among the survivors of the four children therein mentioned, provided the children who predeceased her left no issue. If I am right in interpreting the intention of the téstator that the persons mentioned in the 12th paragraph should take their interest at the time that the proceeds of the Water street property were added to the personal éstate, the appellant, Rebecca O’Brien, has no interest therein, for she was not an issue of Frederick, who predeceased the widow Eliza, leaving no issue. Of the four children mentioned in the. 12th paragraph, Thomas and Frederick died without issue; while Augusta died before Daniel, she left issue; and Eliza died subsequent to Daniel. Our conclusion, therefore, is that Frederick Murphy, under whom the appellant claims, had- no vested' interest in the Water street property or its proceeds at the time, of his death, and could'pass nothing therein by. will, and that the surrogate’s decree that the Cunningham heirs would be entitled to one-half thereof, and the Becker heirs to one-half thereof, is correct..

Certain parties to the record have appealed from so much of the surrogate’s decree as'allowed the executor certain moneys for services rendered in an accounting instituted by Mary It. Murphy, as executrix of Frederick Murphy, deceased, to compel him to account for the interest and income of a lifé estate to which Frederick Murphy was entitled under the 8th clause of the will of Thomas Murphy, the elder; it was' admitted that these charges were fair and reasonable. • '

We think that the learned", surrogate decided correctly that, even though that accounting had to do.with the income of a fund held under, a separate trust from that created in the residuary clause of the will, yet it was proper that these expenses should be paid out of the general estate, for the reason that, on the termination of the trust created. by the 8th' clause of the will, the- fund went into the residuary estate.-.' ■

The decree should be affirmed, .with one bill of costs to each party to the record who filed briefs in this court.

Woodward, Jerks, Gayror and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Kings county affirmed, with costs. Finding supplied in accordance with opinion.  