
    Matter of the Estate of Klumpf, Deceased.
    (Surrogate’s Court, New York County,
    May, 1916.)
    Wills — construction of — devise of real estate in trust — provisions for disposition of income as well as corpus of estate after death of life tenant deferred — Code Civ. Pro. § 2615.
    Testator devised all his real estate in trust to pay over and apply one-third of the income to the use of his wife for her life with direction to divide the remaining two-thirds equally among his three children during the life of their mother. Testator’s wife and all his children survived him, then one of his daughters died intestate leaving her surviving three children who subsequently died intestate without issue them surviving and leaving her husband as their sole next of kin. On petition of the trustee for a construction of the will as to the disposition of the income bequeathed to testator’s children during the life of their mother, held, that the daughter of testator who died took a vested interest in one-third of two-thirds of the income during the life of her mother, and upon her 'death her interest in the income passed to her husband and children and upon the death of all the children their father succeeded to their interest and was entitled to two-ninths of the income during the life of testator’s widow.
    A construction of that part of the will providing for the disposition of the income as well as the corpus of the estate, after the death of the life tenant, deferred until such happening under section 2615 of the Code of Civil Procedure.
    Application by a trustee for the construction of a will.
    Lewis S. Goebel (George V. Grainger, of counsel), for petitioner.
    William Brunner (Patrick L. Ryan, of counsel), for Susan Von Roemer et al.
    
      Adolph E. Grutgsell, special guardian of infant William Klumpf.
   Fowler, S.

The trustee under the will of the testator has filed a petition asking for a construction of that part of the will which provides for the disposition of the income given to testator’s children during the life of his wife. That part of the will which is relevant to the question presented for consideration reads as follows: ‘‘ Third. I hereby give, devise and bequeath all my real estate * * * in trust to pay over and apply to the use of my wife Anna Maria Klumpf for and during the residue of her natural life one-third part thereof, and to divide the remaining two-thirds parts equally among my three children, Susanna Weber, Adam Klumpf and William Klumpf, for and during the term of the natural life of my said wife.”

The testator died in 1883 and was survived by his wife and the three children above named. On March 14, 1893, the testator’s daughter Susanna Weber died, leaving three children her surviving. Subsequently and at various times prior to the filing of the petition herein the three children of Susanna Weber died intestate, leaving no issue them surviving, and leaving their father as their sole next of kin. He is still living. The trustee therefore is presently interested in ascertaining to whom he should pay the income which the decedent directed his trustee to pay to his daughter Susanna Weber.

The language of paragraph 3 of the will is free from ambiguity or indefiniteness. It expressly provides that two-thirds of the income shall be paid to the testator’s three children during the life of Anna Maria Klumpf, the testator’s widow. As Susanna Weber survived the testator, she took a vested interest in one-third of two-thirds of the income from testator’s real estate during the life of the widow, and as she died intestate during the life of the widow her interest in the income passed to her husband and children, and upon the death of all the children intestate, leaving no issue and no husband or wife, their father, Conrad Weber, succeeded to their interest, and is entitled to two-ninths of the income from decedent’s real estate during the life of testator’s widow.

The trustee also asks for a construction of that part of the will which provides for the disposition of the income as well as the corpus of the estate after the death of the life tenant. As the life tenant is still living, and this court will not, under section 2615 of the Code of Civil Procedure, construe provisions of a will where there are no present payments of income to be made, or where the time has not arrived for the distribution of the principal, the question of construction of the other paragraphs of the will will be deferred until the death of the life tenant.

Decreed accordingly.  