John W. Moore died on the 20th day of October, 1878, leaving him surviving his widow, Juliette M. Moore, his son, Sylvester P. Moore and his grandchild, Carrie L. Moore, daughter of his deceased son William L. Moore, his only heirs at law and next of kin. He left a last will and testament in which he gave to his widow the use of all his estate, real and personal, during her natural life, with directions to the executors to appropriate from the corpus of the estate sufficient for her reasonable support and maintenance in case the income should prove insufficient. He then, by the third clause of his will, provided that, "After the death of said wife, then my said executors shall pay what shall remain of my said personal and real estate, or the proceeds thereof, to my son Sylvester P. Moore for him to have and hold the same forever." He then provided for a condition which has not happened — for the death of his son Sylvester without issue during the lifetime of his wife, in which event he directed the estate to be divided among his brothers and sisters. By the fourth clause he provided that, "In case my said son Sylvester P. shall survive my said wife and the proceeds of what shall remain of my estate at the death of my said wife shall exceed the sum of $5,000, then, in that case, my said son shall pay out unto Carrie L., the infant daughter of my deceased son William L. *Page 57 Moore, the sum of $1,000; but in case there shall remain of said estate the sum of $3,000, and not exceeding $5,000, then my said son shall pay unto said Carrie L. only the sum of $500; and if said remainder shall be less than $3,000, then my said son is to pay nothing to said Carrie L. This payment to Carrie is acondition to his receiving the bequest herein made to him."
Sylvester married after the death of his father and had a daughter by the name of Nellie K. Moore, and then died, intestate, during the lifetime of the testator's widow, leaving him surviving Nellie K. Moore, his only heir at law and next of kin. The testator's widow died on the 22d day of October, 1897. The executor reports in his hands for distribution the sum of $4,177.11. The claimants for this fund are the two granddaughters of the testator, Carrie L. Moore, the daughter of the deceased son William L. Moore, and Nellie K. Moore, the daughter of the deceased son Sylvester P. Moore. The Appellate Division has reached the conclusion that the fund should be evenly divided between these two granddaughters. This conclusion appears to be just, and appeals strongly to our sympathies, but we find it difficult to so dispose of the estate and follow the well-recognized rules for the construction of wills.
The testator, at the time of his decease, was possessed of real estate which was subsequently sold by the executors under a power of sale, which, under the will, they were permitted to exercise in their discretion. The power of sale was not imperative, and, consequently, there was no conversion of the real estate into personal property, as of the date of the death of the testator. Under the statute, a future estate is vested "when there is a person in being who would have the immediate right to the possession of the property on the determination of all the intermediate or precedent estates." Sylvester, the son, was, as we have seen, in being at the time of the death of his father, and on the termination of the life estate given to the testator's widow was entitled to the immediate *Page 58 possession of the property. Under this statute it is difficult to escape the conclusion that Sylvester took a vested remainder. But he took it burdened with the condition that he pay Carrie L., the granddaughter of the testator, the sum specified in the fourth clause of the will. This condition is expressly imposed by the provisions of the will. Such appears to have been his estate at the time of his death, and, having died intestate, the estate passed to his daughter Nellie K., as his only heir at law. But she, as such heir, could take no greater estate than that possessed by her ancestor, and his estate being burdened with the payment of Carrie L., it follows that the estate taken by Nellie K. is likewise burdened with such payment.
As we have seen, the amount of the estate was $4,177.11, which was less than $5,000 and more than $3,000. It, therefore, follows that Carrie L. is entitled to receive the sum of $500, and Nellie K., or the administratrix of Sylvester P. Moore, the balance.
We are aware that this result gives Carrie L. but a small portion of the estate, leaving the larger portion to be enjoyed by a granddaughter of the testator, who was not in being at the time of his death; and in this respect the result may seem unjust; but Carrie L. gets all that she would have been entitled to receive in case her uncle Sylvester had lived until after the death of the testator's widow. It is all that the testator intended that she should have, and it would hardly be just for her to profit out of the death of her uncle to the injury of his heir at law.
The judgment of the Appellate Division and the decree of the surrogate should be modified so as to decree distribution as above indicated, and, as so modified, affirmed, without costs to either party.
All concur, except GRAY and BARTLETT, JJ., dissenting, on the ground that all the property should be paid to the administratrix of Sylvester P. Moore's estate.
Judgment accordingly. *Page 59