In re Watts

grandchildren, issue of his deceased daughter Melly or 'Amelia Higbie, and a grandchild, Elizabeth Yoris, only child of his said daughter Susan. His said daughter Betsy survived her husband. She had no descendants living at the death of the testator, nor did she subsequently have issue. Ho grandchild was born subsequent to the testator’s death. All the grandchildren except Elizabeth Yoris died before the death of the testator’s daughter Betsy. Hone of the said eight grandchildren left issue save one, whose child is the petitioner. The controversy arises over the construction of the 8th clause of the will, which provides as follows: “ All the rest, residue and remainder of my estate, I give and bequeath as follows: One-third part thereof I give the use or interest of to my daughter Melly and her husband Samuel Higbie, so long as either of them lives, and after their death I give said one-tliird to the children of said Melly, equally between them; one-third part thereof I give the use or interest of to my daughter Susan and her husband Hendrick ■ A. Hendrickson, as long as either of them lives, and after their death I give said one-third to the children of my said daughter Susan, if she have any, if- not then to go to all my grandchildren ; the remaining one-third part thereof I give the use or interest of to my daughter Betsy and her husband Samuel Hendrickson, as long as either of them lives, and after their death I give said one-third to the children of my said daughter Betsy, if she have any, if not, then to go to all my grandchildren.” The appellant contends that Elizabeth Yoris, as the sole surviving grandchild, is entitled to the entire remainder. The respondent insists that he is entitled to the share which his mother (one of the said eight grandchildren) would have been entitled to had she survived the testator’s daughter Betsy Hendrickson.

I am of opinion that the grandchildren of the testator took a remainder in the one-third given for the use of the testator’s daughter Betsy, which vested in them at the death of the testator as a right according to its character, and which descended to their heirs, so that upon the death of Betsy (who survived her husband Samuel) without issue, it vested in the heirs of such grandchildren. I have substantially adopted the language of Finch, J., in Hennessy v. Patterson ( 85 N. Y. 91 , 105). (See, too, Knowlton v. Atkins, 134 N. Y. 313 , 317 et seq.) The learned counsel for the

appellant invokes the rule that where the gift is expressed-merely in a direction to executors or trustees to divide of to pay or to distribute at a future time, the gift is held to he contingent, and cites. Matter of Crane ( 164 N. Y. 71 ) ; Matter of Baer (147 id. 348); Smith v. Edwards (88 id. 92); Dougherty v. Thompson (167 id. 472). In Matter of Crane (supra) the testator gave all of his estate to his executors in trust for the life of his wife; he made no direct gift of the principal, but simply directed- that upon the death of his wife'his estate should be divided, and thus time was the essence ' of the gift. In Matter of Baer (supra) the donees were to take through thé medium of a power in trust; there were no words either of direct or immediate gift, .but only a direction that the' trustees should convey at a' future time on a certain contingency, and the principle applied was that where a future interest is devised, not directly to a given person, blit indirectly through the exercise of a power conferred upon trustees,, the devise is contingent, and survivorship at the time of distribution is essential. Smith v. Edwards (supra) is cited by the learned counsel as 88 New York, 174, 183. The case is reported in 88 New York at page 92. Pages 174,183 identify the report of Delaney v. McCormack, which is undoubtedly the case held in mind by the learned counsel-But in the latter case, there'was no gift, and no language importing such gift, except in" the direction for conversion and then for distribution. And a similar state- of facts existed in Dougherty v. Thompson (supra). But in the case at bar there is no trust created, nor is the gift embodied in merely a direction to.divide or to pay or to distribute at a future time. The testator gives and bequeaths the use or interest of the one-third to Betsy and her husband, and he writes “ after their death I give said one-third to. the children,” etc. The mere expression “ after their death ” relates to the determination of'the life-estate and does not affect the vested character of the estate. (Corse v. Chapman, 183 N. Y. 466 ; Livingston v. Greene, 52 id. 118; Moore v. Lyons, 25 Wend. 119 .) In Matter of Sea man ( 147 N. Y. 69 , 74) the testator gave, devised and bequeathed the one-half of the residue of his estate for the life benefit of his adopted daughter S., and “upon her decease” he gave, devised and bequeathed such-one-half to the children of his nephew living at ' the time of her death. The court held that these were words of

present gift. In Dougherty v. Thompson (supra), cited by the appellant, the court uses language which one may well adopt. It says, per Landón, J.: “ One of the subordinate rules is that when the onty gift is found in the direction to pay or distribute at a future time, the gift is future and not immediate; contingent, but' not vested. Its reason is plain ; the direction has no reference to the present, and can be executed only in the future, and if in the meantime the donee indicated shall die, the direction cannot be executed at all. If the testator should say, ‘I’give to be delivered later,’ or use equivalent words, the delivery only is postponed. The gift is complete at the testator’s death, and if the donee shall die before delivery, delivery can be made to his representative or assignee.” It is also contended that the bequest is governed by the rule that where 'the gift is of money and the direction to convert the estate is absolute, the legacy vests in those who answer the description and are capable at the time of distribution. I find no such provision in this will. The 8th clause disposes of the residue of the estate; it is described as money in the final subdivision thereof, which the trustees are directed to invest, and by the 9th clause it is left entirely with the discretion of the executors to call in the money now invested or to reinvest the same. It is also urged that the gift is to a class to he ascertained at the death ■ of the life tenant. In Matter of Russell ( 168 N. Y. 169 , 179), the court, per O’Bbien, J., say: “When a testator intends to confine the gift to a class to be ascertained at a future time, his purpose may be so easily accomplished by the use of a few clear and simple words that courts are not warranted, in the absence of such language, in giving to his dispositions of property an exceptional legal character.” (See, too, Matter of Brown, 154 N. Y. 313 , 321.) The gift to the grandchildren meant prima facie those in existence at the time . of the testator’s death, as tenants in common (Matter of Russell, supra), their respective interests being subject to diminution as their number might be increased by the birth of grandchildren during the life of Betsy. (Authorities last cited.) I think that the testator intended to provide for all of his grandchildren, not merely for those who might survive the termination of the life estate. His scheme contemplated that if any daughter left issue her surviving, such issue should take the one-third charged with the life estate in favor of

that daughter, but in failure of such issue, then the one-third should go to the other grandchildren, or, as he expressed it, to all of my grandchildren.

Section 2727 of the Code of Civil Procedure permits a person interested. in the estate to present a petition for an accounting. The petitioner shows that he is one of the children of a deceased grandchild of the testator, and the answer to the petition does not challenge his right based upon such relation. I am of opinion that he is within the purview of the section. (Matter of Prout, 52 Hun, 109 ; Fisher v. Banta, 66 N. Y. 468 .)

The order should be affirmed, with costs.

All concurred.

Order of the Surrogate’s Court of Queens county affirmed, with costs.