ANDREWS, J.
We find no basis for the claim that the trust created by the fifth clause of the will terminated at the death of Emma Dude Herrick, the daughter of the testator's son Richard. It is true that the duration of the trust is not expressly declared. But it was created primarily for the benefit of the testator's son Richard, and the inference that it was to continue during his life is plain. The benefit of the daughter was incidental and subordinate to the main purpose of the testator. The income from the trust estate was to be paid to Richard in monthly payments, and it was left to him to apply it to the support of himself and his daughter during her minority, and the condition annexed to her right to support and maintenance, was apparently inserted as a means of securing a compliance by the granddaughter with the testator's wish that she should reside with the relative designated. The death of the father is the event upon which the trust by necessary implication is limited, and the gift over is upon that event alone. The gift over on the contingency of the death of Richard, leaving no issue surviving, is preceded by the clause, "in no event shall my son, Richard P., be vested with, receive or control any part of the principal of the said one-third, but the same shall be held as a trust estate only and the income only paid to him." These provisions seem to be conclusive that the trust was to continue during Richard's life. The rule that the gift of the income of property is a gift of the property itself, only applies when there is no limitation of time attached to the gift. A gift of income followed by a gift over of the corpus on the happening of a contingency, or on the death of the beneficiary, by necessary construction and without express words, is a gift of the income for the intermediate period only.
The other question of construction relates to the claim of the two children of Richard P. Herrick by his second wife, to share in the legacy of $10,000 given to their half sister, Emma Dude Herrick, by the fourth clause of the will. The claim of the appellants on this branch of the case is based on the general rule which has been declared in many cases that where a legacy is given to a class of persons, distributable at a time subsequent to the death of the testator, all persons in being at the time appointed for the distribution, who answer the description, whether born before or after the death of the testator, are deemed to be objects of the gift, and are entitled to share. ( Teed v. Morton, 60 N.Y. 506, and cases cited.) This construction is placed on the presumed intention of the testator. In the case which most frequently occurs, of a legacy to A. for life, and after his death to the children of A., this presumption is founded upon strong probability, since in such a case the immediate object of the testator's beneficence is A., and it is natural to suppose that the children of A. were made ultimate beneficiaries by reason of their relationship to A., and all bearing that relation when the fund is distributable would be within the motive. The rule applies whether the legacy (if future) is vested or contingent. In the one case those of the class existing at the death of the testator take a vested interest subject to open, and let in persons of the class subsequently born and living at the time appointed for the division; in the other the happening of the event determines both the vesting and the persons entitled to take. (See Tucker v. Bishop, 16 N.Y. 402.) But it is obvious that a testator may devote his gift to a whole class or restrict it to certain individuals of a class; to persons of a class living at his death, or to such persons and all others who may belong to the class at the period of distribution. It is a question of intention, and where the question arises judicially it is to be determined by the intention declared by the will and the res gestæ.
We think any intention to include grandchildren not born at the testator's death in the benefit of the legacies which fail by the death of any grandchild before the age of twenty-five, is negatived on the face of the will. The testator made no direct provision for unborn grandchildren. He gave to each of his living grandchildren a legacy of $10,000. He says to "each of my grandchildren," and admittedly only living grandchildren take a primary legacy. The construction of these words is the same as if the testator had named each of the six grandchildren in place of using the words "each of my grandchildren." The contention is that the meaning of the word "grandchildren" used in the direct bequest is enlarged when the testator in the same clause provides for the devolution of the share of any grandchild dying before attaining the age of twenty-five years. The language of the provision is: "In the event of the decease of either of said grandchildren prior to attaining the age of twenty-five years, I direct the share of such deceased shall be equally divided between the surviving grandchildren, share and share alike." The natural meaning and reading refers the words "surviving grandchildren," in this sentence, to the survivors of the grandchildren previously designated. It would wrench the manifest sense of the clause to give it any other interpretation. There is no doubt that the word "survivors" refers to a survivorship at the death of the grandchild, and not at the death of the testator. But what survivors, is the question to be determined. The answer plainly is, survivors of the six legatees, all of whom were of the same degree of relationship with the testator and constituted a class, although not all the individuals who at some time were grandchildren of the testator. Reference to a paragraph in the fifth clause of the will shows with great distinctness that the testator, in framing his will, either did not have grandchildren who might be born after his death in mind, or that he did not intend to provide for them. In the gift over the trust fund in the event of the death of Richard before the death of his daughter Emma, he gives one moiety to Emma and the other moiety to the testator's daughters, making no provision whatever for any children Richard might have, who should be born after the testator's death. Richard was then a young man, and his remarriage was probable and did in fact occur. This omission is quite significant that the testator did not intend in the gift over of Emma's legacy on her death before twenty-five, that brothers or sisters who might be born after his death, should share in the distribution. We think the judgments below on this point follow the natural and reasonable interpretation of the will, and that the two children of Richard, born after the testator's death, are not entitled to any share of the legacy given to their half sister Emma.
There are some other questions which arose on the accounting. They are fully considered in the opinion of the surrogate, and were, we think, correctly decided.
We discover no error in the judgment, and it should, therefore, be affirmed.
All concur, except EARL, Ch. J., and PECKHAM, J., not voting.
Judgment affirmed.
Comments