EMERY, V. C.
Bill by John P. Streib against Bertha Streib and another for construction of a will. Dismissed.
Thomas Anderson, for complainant.
EMERY, V. C. William C. Glenk, by his will, dated November 27, 1882, and pro red March 15, 1883, bequeathed to his wife all his personal property, and then directed as follows. "It is further my will, and I herewith bequeath unto my said wife. Sophia, all my real estate, of all kinds and description, and wherever the same may be, to her, my said wife. And I further order, and it is my will, that from and after my wife'sdecease all property, real and personal, shall be given, and is hereby bequeathed, to the children of John Streib, and my deceased daughter, Sophia Streib, being at present alive, to with John Streib, Jr., Bertha Streib, and Emil Streib, and be kept for them in safe-keeping by their father, John Streib, Sr., until all shall become of age, and during said time said John Streib, Sr., my son-in-law, shall receive all income and interests from my property for his and the children's support. And when the youngest child shall become of age, the whole property shall be equally divided among the said three children, John Streib, Jr., Bertha, and Emil; and if one of the same shall die, then his share shall go to the remainder children; and in case all three shall die, then I order, and it is my will, that the same be divided as follows: One-third shall go to my son-in-law John Streib, Sr., and two-thirds shall go to the children of my brothers and children. And I further order, and it is my will, that my son-in-law, John Streib, shall, as soon as one of his three children aforesaid become of age, pay each of them the sum of five hundred dollars out of my property; that is to say, when John Streib, Jr., shall become 21 years five hundred dollars, when Bertha Streib shall be 21 years five hundred dollars, and when Emil Streib shall be 21 years five hundred dollars, and then the remainder property be equally divided among them, as aforesaid." Testator, at the time of his death, was seised in fee of a house and lot of land in Newark, which was occupied by his widow until her death in 1886. John Streib, the surviving executor, then received and appropriated the income for the support of himself and his three children, named in the will, until his death, on February 1, 1888. His three children, John (now called John P. Streib), Bertha, and Emil, survived him, and are still living; John having attained the age of 21 years on November 28, 1893, Bertha being now 17, and Emil 16 years of age.
After his father's death, John P. Streib was, on April 7, 1896, appointed trustee in the place of John Streib, deceased, and, there being no personal property of the testator to pay the legacies to be paid to John on coming of age, suit in this court was brought for its payment, and by a decree in that suit, in which John P. Streib, as trustee, was the complainant, and Bertha and Emil Streib defendants, the lands were ordered to be sold for the payment of the $500 legacy, with interest, and the surplus to be paid into court. Under this order $6,210.88 has been paid into court, and this bill is now filed by the complainant, John P. Streib, claiming payment to himself, now, absolutely, of one-third of the moneys. He insists that, by the true construction of the will, the grandchildren, upon the death of their father, were entitled at once to their shares absolutely in fee, and therefore are entitled now to the immediate payment of their shares from the proceeds of sale. I cannot agree with this contention. While the estate in fee became vested in the three children equally upon the death of their grandmother, subject to be devested by death before 21, as afterwards provided, yet the time for possession of this estate by the children, and its division between them, was expressly postponed to another date, up to which time it was to be kept intact. The directions of the will are express and positive, postponing the time of payment and distribution until all of the children become of age. "To be kept for them in safe-keeping by their father until all shall become of age" is the first direction as to this time of division. "And when the youngest child shall become of age the whole property shall be equally divided" is the next, with cross limitations over in case of the death of either. In the next clause follows the direction for the payment to each of his children of $500 as they respectively reach 21, and the final direction is, "And when Emil Streib shall be 21 years $500, and then the remainder property be equally divided as aforesaid." The whole scope of these provisions is to prevent any child receiving more of the principal or corpus than $500 until the youngest child comes of age, and these directions are so clearly expressed and repeated that their force cannot be impaired or overcome by any difficulty, or supposed difficulty, of suspending the payment or possession after the death of John Streib, arising out of the application or construction of other portions of the will.
The main contention of complainant is that the postponement of the division was solely for the purpose of having John Streib receive the income for his and his children's support, and that, this purpose having fail ed, the estate limited to children on the death of the grandmother became vested in possession at once on the death of John Streib, Sr. But this would magnify the purpose of this provision in favor of John Streib, and give it the effect, by implication, to override express words; and, in my judgment, the provision cannot be so magnified or extended. While the death of John Streib may prevent the income, or part of it, being applied to his children's support by the person indicated for that purpose by the testator, yet another trustee may be, and has been, appointed to carry out this purpose, as to the whole of the income (now that John Streib's interest has ceased), and, when this is done, all of the provisions of the will are carried into effect. To pay over now to the child over 21 would, as it seems to me, ignore the express provisions as to the time of payment, and the contingent interests provided for in case of the death of any child before the time fixed, and do this solely by reason of uncertain implications. I will therefore advise a dismissal of the bill.