In re the Settlement of the Accounts of Seebeck

tors, administrators and assigns forever. By the third paragraph of a codicil made April 9, 1881, he revoked and annulled the nineteenth clause of his will, and in lieu thereof he directed his executors to let the premises described therein, and out of the income arising therefrom to pay to 1ns sister the sum of $600 annually in quarterly instalments, and to pay over the balance of the net income to his sister’s children in equal shares. He made some other changes in his will not now material to be noticed, and ratified and confirmed it in all other respects. The provision of the codicil was thus substituted for the nineteenth clause of the will in its entirety; and the legal effect of the instrument, so far as it disposed of the real property in question, was to devise it to the sister’s children, subject to the execution by his executors of a power in trust to let it for the lifetime of his sister and pay to her annually the sum of $600, and to her children in equal shares the balance of the net income. The testator died in 1881. Four children of his sister were then living, of whom Henry M. Tienken was one.

The executors rented the real property and distributed the income as required until October 31, 1889, when Henry M. Tienken died, which event gave rise to the present controversy. It was then insisted by the surviving children of the testator’s sister that the personal representatives of the deceased brother were not entitled to share in the distribution of the balance of the net .income of tliis real property; that the executors were directed to pajr it to tire sister’s children, and that they took as a class and not distributively, and that upon the death of Henry M. Tienken the surviving children became entitled to the whole. The surrogate decided otherwise, and held that the widow of Henry M. Tienken, who was the sole devisee and legatee under his will, was entitled to the share of the income which he would have taken if living.

The General Term, by a divided court, reversed the decree of the surrogate in this respect, and held that the surviving children took the entire surplus income, to the exclusion of the representative of the deceased child, and the correctness of this decision presents the only question involved in this appeal.

The respondents rely upon the rule that where there is no gift except by a direction to executors or trustees to pay or divide at a future time, the gift does not vest in the beneficiary until that time arrives, and inasm uch as in the nineteenth clause of the will, as modified by the codicil, there is no gift in express terms to anybody, but only a direction to rent the property and distribute the income from time to time, only such persons are entitled to share in the distribution as correspond to the designated class of beneficiaries existing at the time when each distribution is made. But the law favors the vesting of legacies, and this rule has many excejrtions engrafted upon it, not the least important of which is that it must be subordinated to the intent of the testator, to be gathered from the entire testamentary scheme. Bowditch v. Ayrault, 138 N. Y., 222 ; 52 St. Rep., 330 . It is evident that the primary object of the creation of the power in trust in this case

was to secure to the testator’s sister an annual income of $600, ¡rajable out of the rents of the real property, and the same persons are made the beneficiaries of the balance of the income who will become entitled to the corpus of the estate after the death of the sister. It is conceded that the power in trust will not survive her death, and that all of her children acquired a present vested title in the real property immediately upon the death of the testator, subject only to the execution of the trust power.

These two clauses of the will are closely related, and should receive the same construction as would be given them if both had been incorporated in the same paragraph. The testator’s object is very clear. He sought to secure to his sister a definite annual income out of the rents and profits of certain real property, which he had devised, to her children in equal shares; but as these rents and profits might be more than sufficient to produce the required income for his sister, he provides that her children, who are upon her death to be entitled to the real property itself, shall take the balance of the income in equal shares. The title to this part of the income was to vest in the same parties as the body of the estate which produced it, and precisely the same words are used to denote the beneficiaries in the one case as the other. There are no words of survivorship, and no good reason has been shown or •suggested why it should be held that the children of the sister should take as a class in one case, and distributively in the other. It does not appear that they were minors living together as one family, and that this income was designed for their support collectively. It is more reasonable to infer that he intended that the gift of the surplus income should take the same direction as the land out of which it issued. The children of the .sister took the income as tenants in common, and not as joint tenants. It was to be divided between them in equal shares, and any mode of expression which denotes a severance is sufficient to create a tenancy in common. By the well-settled rules of testamentary construction the children referred to are those living at the testator’s death. The rights of after-born children are not involved.

We think the intent of the testator is further evidenced by the modification of ths twentieth clause made by the fourth paragraph of the codicil, where he provides that one of the children shall not receive the fee, but only the income of one-fourth of the residuary estate during his lifetime, and that the fee shall go to his children after his death. It is evident that he contemplated a division of income into four equal parts to correspond with the number of children living at his death. But, under the claim of the respondent, if all the children except this one should die in the lifetime of the mother, he would be entitled during her life to the entire surplus income.

We think in the present case that it is clear that the testator intended that the right of his sister’s children to this real property and to the surplus income should vest in them immediately upon His death, and that the enjoyment only of the possession of the fee and of the income should be postponed, and that it is not distinguishable in principle from Goebel v. Wolf, 113 N. Y.,

405 ; 23 St. Rep., 176 , and In re Tienken, 131 N. Y., 391 ; 43 St. Rep., 184 .

The judgment and order of the general term, and the decree of the surrogate must be reversed and the order of the surrogate appealed from affirmed, with costs in this court to the appellant, to-be paid out of the estate, and the proceeding remitted to the surrogate’s court for a further hearing.

All concur.