
    Matter of the Judicial Settlement of the Account of Annie Radford, as Executrix under the Last Will and Testament of Annie Early, Deceased.
    (Surrogate’s Court, Kings County,
    February, 1902.)
    Bemaiader — When vested.
    Under a devise of the property of a testatrix to her executors, in trust, to hold it “ until my son George Early attains the age of twenty-one years; then the property to be sold and the proceeds of such sale to be divided among the surviving children or their heirs, share and share alike ”, the remaindermen take interests which vest at the death of the testatrix and therefore an assignment made by one of them, who died unmarried and without issue before George Early had attained the age of twenty-one years, to another of them, conveys that interest to the assignee.
    Pboceedings upon the judicial settlement of the account of an executrix. Construction of a will.
    William J. Kelly, for executrix.
    William H. Good, for Margaret Mulligan and George Early.
   Chübch, S.

This is a question of the construction of a will.

The will devises the property to.the executors, who were two of testatrix’ daughters, in trust to hold “ until my son George Early attains the age of twenty-one years; then the property to be sold and the proceeds of such.sale to be divided among the surviving children or their heirs, share and share alike.”

Annie Radford, one of the executors, subsequent to the testatrix’ death, purchased the share of her brother James Early; this-brother died unmarried and without issue before George Early became twenty-one years of age.

Margaret Mulligan, the other executor, was removed as such for misconduct, and now contends that under the will the remainder was simply a contingent one that did not vest until -the period of distribution, and that, therefore, the assignment of James J. Early of his interest was ineffectual.

The mere direction for the payment of a-legacy at a future time does not prevent its vesting; the question is whether from the will as a whole it was apparent that it was the intention of the testatrix that it should vest.at the time of her death.

As a general rule bequests to a class mean the persons in existence at the time of the death of the testatrix; the addition in this will of the words or their heirs ” plainly shows that the testatrix contemplated the contingency of some of the children dying between her death and the period of distribution and was a provision that in such event their heirs should take. This shows a plain intention to make the estate vest immediately upon testatrix’ death.

Counsel contends that these words should be regarded as surplusage, but if, as I have held, they, show that they were used as an evidence of the testatrix’ intent, they are very important.

The case is plainly within the cases of Matter of Mahan, 98 N. Y. 372; Goebel v. Wolf, 113 id. 405.

This being the only objection to the decree proposed by "the executrix I will sign the same in the form proposed.

Decreed accordingly.  