
    James A. Murtha and Thomas Conner, as Executors and Trustees under the Last Will and Testament of William G. Peirson, Deceased, Plaintiffs, v. George Wilcox, as Executor of the Last Will and Testament of Martha W. Peirson, Deceased, William B. Peirson and Edward E. Peirson, Defendants.
    
      Will — when an estate in remainder, directed to he divided after ■the death of a Ufé beneficiary, vests on the testator's death — the fact that it will go to a disinherited- . son does not change the construction.
    
    A testator by his will gave his residuary estate to trustees with instructions to-carry on his business until the death of his father, who was to be-employed to-manage the business as long as he lived and was able-or desired to retain the position, and to whom the trustees were directed to pay §1,200 a year as long as he lived, the remaining income of the estate to be paid over to the testator’s wife, to his son, Edward E, Pfeirson, and to his grandson, William L. Peirson;. one-third to each. It further provided that the trusts created by the will were to continue until the testator’s grandson should reach ¡the age of twenliy-one years, or until the death of the testator’s father, whichever event should take place last; and that “ upon the death of my father, Edward Peirson, or upon the arrival’of my said grandson at the age of twenty-one years, whichever event shall be last, as set forth in the preceding section of said will, I direct that my whole estate he equally and equitably divided among my wife, Martha W. Peirson, my said son, Edward E. Peirson, and'my said grandson, William L. Peirson.”
    
      Held, that the share of the corpus of the residuary estate given to the testator’s wife vested in her at the time of the testator’s death, and was not contingent upon her surviving the termination of the trust created by the will;
    That the fact that the share which, under this construction, vested in the widow would pass under her will to a son of the testator, whom he had by his wil / declared undutiful and practically disinherited, afforded no reason for rejecting such construction.
    Submission of a controversy upon an agreed statement of facts pursuant to section. 1279 of the Code of Civil Procedure.
    
      Murtha & Tucker, for the plaintiffs.
    
      George Wilcox, for the defendant George Wilcox, as executor, etc., and William B. Peirson.
   Willard Bartlett, J. :

In this controversy we are palled upon to construe the will of William G. Peirson, a resident of Brooklyn, who died therein on September 3, 1896. In the 1st article of his will the testator directs payment of his debts and funeral expenses. The 2d article is in these words : “ My son, William B. Peirson, having been an undutiful son to me in many ways, and it being my desire that he receive nothing from my estate other than one hundred dollars, I therefore give and bequeath unto my said son, William B. Peirson, the sum of one hundred dollars.” By the 3d and 4th articles the testator devises 'and bequeaths Xll the rest and residue of his estate, real and personal, to trustees, who are directed to carry on his business of manufacturing cement pipe and bricks until the death of his father, Edward Peirson, whom they are to employ as manager of the said business as long as he lives and is able and desires to retain such position./ By the 5th' article the trustees are directed to pay- the father of the testator $1,200 a year as long as he lives, whether he be the manager of the business or not. XThe 6th article directs that the annual profits and net income from tiie testator’s estate, after paying the expenses and the annuity of $1,200 to the father of the testator, shall be paid over by the trustees, one-third to the testator’s wife ; Yne-third to his son Edward E. Peirson ; and on e-third, to his grandson, William L. Peirson (the son of Edward E. Peirson), or to the guardian of such grandson The 7th article provides that the trusts contained in the will are to continue until the testator’s said grandson, William L. Peirson, shall reach the age of twenty-one years, or until the death of the testator’s father, Edward Peirson, whichever event shall take place last. The 8th article of the will is in" these words :'“Upon the ■death of my father, Edward Peirson, or upon the arrival of my said grandson at the age of twenty-one years, whichever event shall be last, as' set forth in the preceding section of said will, I direct that my whole estate b.e equally and equitably divided among my wife, Martha W. Peirson, my said son, Edward E. Peirson, and my said grandson, William L. Peirson.” y(By the 9th and last article the plaintiffs in this controversy are appointed executors of the will and trustees thereunder.

Martha W. Peirson, his wife, William (B. Peirson and Edward E. Peirson, his sons, and William L. Peirson, his grandson, all survived the testator. On December 13, 1896, the testator’s widow, Martha W. Peirson, died, leaving a will in which she devised and bequeathed all.her estate, with the exception of $100,-to her son William B. Peirson, being the son who is described as undutiful in the 2d article of the will under consideration in the present controversy. Edward Peirson, the father of the testator, upon whose •death the trust created by the will was to terminate, died on April 1, 1899, and William L. Peirson, the testator’s grandson, died on November 20, 1899, before attaining the age of twenty-one years., The executors and trustees under the will of William G. Peirson, who are the plaintiffs here, contend that the interest of his widow, Martha W. Peirson, in her husband’s estate was contingent upon her living until the termination of the trust established by the will, and that inasmuch as she did not live until that time she took nothing from her husband’s estate which, could pass under her own will. On the other hand, the defendant George Wilcox, who is the executor "under" Mrs. Peirson’s will, insists that the gift to her vested immediately upon her death, subject only to the trust provided for in the will; and his views as to the legal purport and effect of the testamentary dispositions in question are not unnaturally shared by the defendant William B. Peirson, who is the sole residuary devisee and legatee under his mother’s will.

\After his father, who was in any event to have an income of $1,200 a year out of the estate as long as he lived, the objects of the testator’s bounty were, first, his wife, Martha W. Peirson; second, his son Edward E. Peirson; and third, his grandson, William L. Peirson. Each of these persons was to receive one-third of the net income of the estate during the existence of the trust, and when the trust terminated the whole estate' was to be equally divided between them/

While the gift is made solely by a direction to divide at a future date, the main purpose of the testator in establishing the trust seems to have been to provide an income for the support of his father as long as his father should live, and to postpone the distribution of the estate until his father should be dead and his grandson should have attained his majority, ithis postponement, chiefly for the benefit of the father of the testator, to enable the ■estate to meet the burden of the provision made in his behalf, did not operate to prevent the legacies over from vesting. (Coit v. Rolston, 44 Hun, 548; Matter of Young, 78 id. 521; affd. in 145 N. Y. 535.)

Mor did the intervention of the trust have such effect. As in Goebel v. Wolf (113 N. Y. 405, 415), the intention of the testator ■appears tó have been to vest at the time of his death an equal •share of his estate in his wife, his son Edward and his grandson, William L. Peirson, subject to the trust during the period specified in the will — the constitution of the trust being a convenient means of carrying out the testator’s intention to assure to his father an income and support for life.

This construction prevents intestacy, and is, therefore, to be preferred. (Shangle v. Hallock, 6 App. Div. 55.) It also has the support of the rule that “ a remainder is not to be considered as contingent in any case where, consistently with the intention of the testator, it may be construed as being vested.” (Hersee v. Simpson, 154 N. Y. 496.)

But it is said that the intention of the testator manifested in the-2d article of the will, that his son William B. Peirson should receive only the sum of $1100, will be defeated by holding that the wife took a vested interest in the share of the estate bequeathed toller, because it turns out that she has willed practically all her property to that son. The intention which we are inquiring after, however, is the purpose of the testator, as it existed at the time he made- ■ his will, with reference to the effect of that will upon his wife and those who were named with her to share in the’ final distribution of the property under the 8th article of the instrument. ^ If he-intended to give her an. absolute and immediate interest, the fact, that she has transferred that interest to someone who was persona-non grata to the testator cannot make any difference in the proper construction of this will/ 'The facts already mentioned, together with liis omission to make any gift over in case of the death of his-wife or his' son Edward or his grandson, during the continuance of the-trust, satisfy us that he meant to give his wife a- vested interest-in his estate which she had power to dispose of by will as she has-attempted to do { and the circumstance that she has bequeathed the-property thus acquired to a son whom her husband deemed undutiful is of no' more consequence in the determination of this controversy than would be a similar bequest by her to an utter stranger.

The defendants must have judgment in accordance with the views, expressed in this opinion.

All concurred, except Hirsohbeííg, J., taking no part.

Judgment directed for the defendants, without costs, in accordance with the opinion of Bartlett, J.  