[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 579
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 580
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 581 When this case was before us on a former occasion (see 83 N.Y. 561), the only point presented for our consideration was whether the adult children of the testator were entitled to a preference over his two infant children by his second marriage, in the amounts of their shares on the final distribution of his estate. The question whether the children took life estates in their respective shares, or whether they were entitled only to equitable interests therein as beneficiaries under a trust, did not arise and was not a subject of discussion. From this circumstance an inaccuracy in some general expressions crept into the opinion, which would not have occurred had the point been before us. Any misapprehension which may have been occasioned by this inaccuracy should, however, have been corrected by the concluding portion of the opinion, which affirmed so much of the judgment of the Supreme Court as adjudged that the children took life estates in their respective shares on the final distribution.
The point is distinctly presented by the appeals now before us, and we are of the opinion that each child of the testator, entitled to share in his residuary estate, took a legal estate for life in an equal share thereof, the shares to be equalized in the manner pointed out in our previous opinion. *Page 584
The direction in the eleventh clause of the will is that the residuary estate shall be divided share and share alike among the children named and designated, and that each child shall have the use and benefit of one of said shares for life, and at his or her decease the principal thereof is to go to his or her issue, provision being made for the decease of any of said children before the testator. The children are entitled under this disposition not merely to the benefit, but to the use of their respective shares, and no trust estate is interposed between them and their actual enjoyment of their shares. A trust is sought to be spelled out from the twelfth clause which confers upon the executors a power of sale over the real estate, and directs them to keep the proceeds of such sales and all other moneys of his estate not wanted for immediate use, deposited or invested as therein directed until a final settlement of his estate. No direction is given as to any disposition of the income of these funds, nor are any apt words used to create any trust in respect thereof other than such as resulted from the relation of the executors thereto by virtue of their office. It was a mere direction as to the temporary custody of the funds until the final settlement should take place. By this was intended the final settlement of the accounts of the executors, when the debts and expenses of administration should be paid and the shares of the residuary legatees, respectively, should be ascertained in the manner directed by the will. Upon this being done the time for final settlement arrived, and each legatee became entitled to enter into the possession of his or her share, for life, subject to the remainders limited thereon. And each one had a vested estate in remainder in the two trust funds of $25,000 and $4,000 mentioned in the will.
Our conclusion is that the order of the General Term should be reversed, and the judgment of the Special Term should be affirmed, with costs, payable out of the funds in the hands of the executors.
All concur.
Order reversed and judgment affirmed. *Page 585