[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 25
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 26 John Mortimer, Jr., had six children living at his death, in September, 1875, and sixteen grandchildren, some or all of whom are still living. The scheme of his will, made in March, 1875, was to divide his residuary real and personal estate into shares, and to give to each of his surviving children the income of one share for life, and the *Page 28 principal of such share on the death of any child to his issue then surviving. He contemplated the possible death of a child before his death, leaving issue surviving, and in that case such issue surviving at testator's death was to take absolutely the share of the deceased child. In case a surviving child should die after the death of the testator, leaving no issue living at his or her death, then the share of the one so dying was to be subject to certain dispositions not now necessary to be stated. All the testator's children survived him, and the provision made for the issue of a deceased child who may have died before the testator, leaving issue surviving at the testator's death, became inoperative. To effect the scheme of the testator the will directed his executors and trustees to divide his residuary estate into so many shares as he should have children living at his death, and children who should have died leaving lawful issue surviving at the testator's death, and to allot one share to each child surviving him, and a share to the issue of any deceased child. By the fourth section of the will, which prescribes the disposition to be made of his residuary estate, the testator devised and bequeathed to the issue of any child who had died before him, leaving issue surviving at the testator's death, one share absolutely, as before stated. He devised and bequeathed to his executors and trustees one of said equal shares for each of his children living at his death, in trust to receive the rents, issues and profits thereof, and apply the same to the use and support of such child during his natural life. The third subdivision of section four of the will provides for the disposition of the principal of the share of any such child on his or her death, as follows: "Upon the death of my daughter or son for whom the same is held in trust, I order and direct my said executors and trustees to convey, transfer and pay over and deliver the said share to his or her lawful issue per stirpes, and not per capita, to have and to hold the same to such issue, their respective heirs, executors, administrators and assigns forever." Then follow provisions for the disposition of the share of any child on his or her death "without lawful issue him or her surviving." *Page 29
It is plain that, upon settled rules of construction, the issue of any child of the testator living at his death, took under the will a vested remainder in the share held in trust for the parent for life, subject to open and let in after-born children, and to be divested by their death before the death of the parent. The limitation in its general aspects is very familiar, and one frequently found in wills. Upon the death of the testator, individuals of the class entitled to take in remainder were in existence and ascertainable. The only contingency which would defeat their remainders vesting in possession was their death before the death of the parent. It was a subsequent and not a precedent condition. The direction that the trustees on the death of the parent should "convey, transfer and pay over and deliver" the parent's share to his or her issue, was inserted to emphasize the right of the remaindermen, and was not the foundation of their title. The whole scope of the will negatives the idea that their rights were dependent in any way on the action of the trustees, or that the vesting of their interest awaited the exercise by the trustees of the power to transfer, convey and deliver the share to the issue so entitled. The testator did not intend to die intestate as to any portion of his property. The whole was given to his children and their issue. The trust was created to secure to his sons and daughters the beneficial enjoyment of their several shares for life and to preserve the principal for their issue, and careful provision was made for the disposition of the share of any child in the contingency of his or her death leaving no issue surviving. There is no room for the application of the technical rule sometimes resorted to, to ascertain whether an interest given by a will is vested or contingent, that where the gift is only found in the direction to divide at a future day, this circumstance may be considered and have weight. It is a rule for ascertaining the real intention of a testator and not for defeating it. Those entitled under this will as remaindermen took, not because the power of division was given to the trustees, but independently thereof, as primary *Page 30 devisees in remainder under the will. The class may be enlarged or diminished, or the rights of the issue of any child may be extinguished by the extinction of such issue by death before the termination of the life estate, but this does not affect the question. The issue living are presumptively entitled in remainder, and during the life of the parent, they living, have a vested future estate in the parent's share. The case of Moore v. Appleby (108 N.Y. 237) is a direct authority for the conclusion above stated and follows prior cases as well as the rule of the statute. (Mead v. Mitchell, 17 N.Y. 210; Moore v. Littel, 41 id. 76; 1 Rev. St. 723, § 13.) The case ofTownshend v. Frommer (125 N.Y. 446) does not and was not intended to overturn the general doctrine, that remaindermen are not bound by a conveyance of the estate to which their interest attaches unless they are parties thereto in fact or in law. The case was peculiar and anomalous and involved complicated questions under the law of trusts and powers. It arose under a trust deed, whereby the grantor retained the beneficial use of the property for life and which contained directions for the disposition of the fee after her death, to persons who were not ascertainable until the happening of that event. The intention of the grantor, deduced by the court from the transaction, was to postpone the accruing of any future interests until that event happened. The present case affords no ground for such a presumption. Whether the remainders in this case were vested or contingent, the persons in being when the partition action was commenced, presumptively entitled to possession on the death of the life tenant, were necessary parties.
This leads to an affirmance of the judgment.
All concur.
Judgment affirmed. *Page 31