George Lovett, late of the city of New York, deceased, on the 17th day of October, 1861, made his last will and testament, and died on the 5th day of January, 1864. He left real estate of the value of about $800,000, and personal property amounting to about $1,200,000. He left him surviving two daughters, Mary Kingsland and Augusta Gillender, both married, and having issue. Mrs. Gillender has one child living, and Mrs. Kingsland, at the time of the testator's death, had nine. The complaint in this action is filed to obtain the proper construction of the testator's will, and the portions of it material to be considered, are in these words:
"I give to my daughters, Augusta Gillender and Mary Kingsland, twelve thousand dollars per year each, payable quarterly, during their lives. And I also give to my daughter, Augusta Gillender, the premises I now occupy, No. 23 Union Square, for her use or benefit during her life, she paying all taxes and charges against said property; I also give *Page 624 to my said daughter Augusta all my furniture and plate of all descriptions; and, in case of the death of either of my said daughters, the amount left to either of them, as above mentioned, shall be paid to the child or children of them, until my estate is divided among my grandchildren.
"I give to my granddaughter, Helena Gillender, one-fourth part of my real and personal estate, and the other three-fourths to be equally divided between the rest of my grandchildren, after the death of my two daughters, Augusta and Mary, and no division, in any case, before that time.
"And it is my will that no part of my real estate be sold or incumbered during the lives of my two daughters, or either of them, and it is my will that any balance of money unexpended of my estate shall be invested on bond and mortgage on real estate. I leave to the surviving executors and executrixes, hereinafter named, and in order to effect a division of my estate, I give and grant unto my said executors, the survivor or survivors of them, all lawful authority to sell and convey, and to execute deeds of conveyance of my real estate, after the death of my two daughters." The testator appointed his son-in-law, Ambrose C. Kingsland, his brother, Robert Lovett, his executors, and his two daughters the executrixes of his last will, and the same was duly proven as a will of real and personal estate.
The Supreme Court, at Special Term, gave judgment declaring:
1. That the annuity given to each daughter would absolutely cease at her death, and that the executors should hold and invest a sufficient amount of the personal estate, other than leases of lands, to satisfy such annuities.
2. That Mrs. Augusta Gillender was entitled to a life estate in the house in Union Square.
3. That neither of the testator's daughters took any other interest in the rents and profits or income of the testator's property, real or personal.
4. That Miss Helena Gillender took three-twelfths, and each of the Kingsland children one twelfth of all the residue of the testator's real and personal estate. *Page 625
5. That the shares so taken by the ten grandchildren respectively were vested estates and interests, taking effect immediately upon the testator's death, and not liable to be affected by any subsequent event. That all postponements or prohibitions of or restrictions upon the right to sell, incumber or divide the testator's property, contained or intended in said will, were inoperative and void.
6. That the executors and executrixes took no estate, in the real estate, nor any right to receive any rents thereof; that the executrixes had no power to sell the real estate; and that the power of sale given to the executors be restrained and annulled, save and except only, in respect to the said house and lot in Union Square.
On appeal, this judgment was affirmed at the General Term and the defendants, Mr. and Mrs. Gillender, and their daughter, Miss Helena Gillender, now appeal to this court.
1. The annuities given to the two daughters were for their lives respectively. It was all the testator intended they should receive personally of his estate, with the exception of the provision made, in addition to favor of Mrs. Gillender. The condition of the pecuniary affairs of the sons-in-law sufficiently indicate the reasons for this discrimination in her favor. It is apparent from the whole frame work of the will that the testator had in his mind the scheme of retaining his whole estate, real and personal, with the exception of these annuities and the specific bequests and legacies contained in the will, in a mass until the death of his surviving daughter. But it will be seen that he entirely failed to effectuate any such intention, and that the shares of his estate, given to his grandchildren, vested absolutely in them upon his death. Having in his mind the idea that his grandchildren would not come into the possession and enjoyment of their respective shares of his estate until the death of his surviving daughter, he directed that "the amount left to either of them [his daughters] as above mentioned, shall be paid to child or children of them until my estate is divided between my grandchildren." It is manifest what consideration influenced the testator in giving these directions. He assumed that the *Page 626 estate would not be divided until the death of the surviving daughter, and until that event it would remain intact. The result in this contingency would be, that in the event of Mrs. Gillender dying and Mrs. Kingsland surviving, the extent of the provision for the support of the daughter of the former would be the rents of the house on Union Square after payment of all taxes and charges thereon.
In view of such a result this clause was inserted. The annuity was only to be paid to the child, or children, of the deceased daughter, until his estate was divided among his grandchildren. This was the controlling event, which was to determine the duration of its payment. If such division should take place, during the lifetime of the daughters, then, by the express terms of the gift, it was not to take effect, and such division rendered wholly unnecessary the provision itself. The testator never contemplated, that the annuity to the child or children of a deceased daughter, was to be paid by them, to themselves, out of an estate wholly vested in them, and in which they had the full enjoyment. It is, therefore, very clear, that the annuity to each daughter terminates upon her death, if at the happening of that event, the estate of the testator had been divided among his grandchildren. The division contemplated by the testator was a vesting of each share absolutely in the beneficiaries, and the right to enjoy the income and profits thereof. Whenever that event should happen then the annuity given to each daughter should terminate with her life. The testator had no intention of keeping alive such annuities after the vesting of the estate given to the beneficiaries, and after they became entitled to participate in the rents, and profits, and income thereof. If that event has happened before the death of either of the testator's daughters, and sooner than contemplated by the testator, then it is a necessary consequence that the annuity given will terminate, upon the death of the annuitant. It is expressly given for life, and must, therefore, be paid during the life of the annuitant. It ceases on the death of either, if, at that period, the contingency, upon which alone it was to be paid to the deceased annuitant's *Page 627 child or children, could never arise. In the view we take of this will, the estate given to the grandchildren cannot be undivided in the sense contemplated by the testator, at the death of both or either of the daughters, and consequently the annuity given to them for life must cease upon their respective deaths.
There is no controversy that Mrs. Gillender is entitled to a life estate in the Union Square House. The provision of the will on this point is so clear that no question is raised to the contrary.
So it would seem to be equally clear, that neither of the testator's daughters took any other interest in the rents and profits, or income of his property, other than the annuities, and the gift to Mrs. Gillender of the rents and profits of the Union Square House for life. It cannot be doubted that such was the intent of the testator, and they could only take any additional portion, in the event of an intestacy, as heirs-at-law. If we find that the testator has made a legal and valid disposition of all the rent and residue of his estate, real and personal, then it must be conceded that the interest of the daughters is confined to the annuities, and the life estate to one of them in the Union Square House. This brings us to the next subject of inquiry, what if any disposition has been made by the testator of the residue of his estate, real and personal.
He manifestly intended to make such disposition of all the residue of his estate, and it remains to be considered whether that intent has been carried into effect. The testator says: "I give to my granddaughter, Helena Gillender, one-fourth part of all my real and personal estate." No one can doubt but that this is a present gift and devise, to the person named, of one-fourth part of all the testator's estate, real and personal, absolutely and unqualifiedly, subject to the payment of the annuities, and to the life estate created in a portion of the real estate. It would pass one-fourth part of the personal estate, presently and absolutely, to the donee, and vest, immediately on the death of the testator, one-fourth part of his real estate in his granddaughter, subject as aforesaid. *Page 628 The gift and devise of the remaining three-fourths of all his real and personal estate to the rest of his grandchildren, which were the children of his daughter, Mary Kingsland, is, in substance, in the same language. It may be read thus: "I give to the rest of my grandchildren the other three-fourth parts of all my real and personal property, to be equally divided between them." The same observations may be applied to this gift and devise as have been made in reference to those to Miss Gillender. They are equally absolute and present, and vest the personal and real estate instantly on the death of the testator, in the donees and devisees. (4 Kent Com., 535, and cases cited.) The testator added a restriction to the gift and devise to the rest of his grandchildren, in the form of a direction, that the division among them was to be made after the death of his two daughters, and adds, "and no division in any case before that time."
This restriction is clearly repugnant to the absolute and unqualified gift already made, and is inoperative and void. So are all the postponements or prohibitions of the right to sell, incumber, or divide the testator's property contained in the will. They are repugnant to the estate given, and must, therefore, fall. This precise point was held by this court, in the case of Oxley v. Lane, decided at the last term of this court, and the doctrine of that case is conclusive upon the one now at bar.
The only authority given to the executors named, is to sell and convey, and execute deeds of conveyance of the real estate, for the sole purpose of effecting a division thereof, upon the death of the testator's daughters. As the law made that division upon the death of the testator, the provision is inoperative, and has nothing to support it. It was in any event a passive trust, and the estate rested in the devisees, without the necessity of a conveyance from the executors.
We see no grounds for interfering with the judgment of the Supreme Court, and are of the opinion that it should, in all respects, be affirmed.
Judgment affirmed. *Page 629