This action involved the construction of the will of -William -G. Breese, who died in 1861, and whose will was probated in New York county on the 2d of July, 1861.
The question presented upon this appeal is as to whether the next of kin referred to in the will were those who were the next of kin of the testator at the time of his decease, or those who were such next of kin at the time of the termination of the particular estate created by the will. The rule undoubtedly is that where final division and distribution is to be made among a class," the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is *252directed to be made. And this rule must prevail unless a -contrary intention can be found in the will under consideration.
The testator by Ms will, after maMng some bequests to his half sisters and directing the' payment of his debts, devised and bequeathed to. his wife absolutely one-third part of all the rest and . residue of his estate. He further devised two-thirds of such rest and residue to his trustees and the survivor of them in trust, to hold and retain the whole, of the same for the use of his daughter, Cornelia Frances Breese, during her natural life, and after her death, if ¡she should die without leaving issue her surviving at the time of her death, and leaving his wife her surviving, for the use of his wife for her life.
The testator further provided that if his said daughter should attain the.age of thirty years, that thereupon so much of said two-thirds'of his estate to ¡be held in trust as aforesaid as should exceed the sum dr value of $50,000 should go and be paid and transferred to his said daughter absolutely for her own sole and separate use and benefit, and upon her sole and separate receipt, and should be subject to her disposal by will or appointment ill the nature of a will or otherwise, and that thereupon the; said trust as to so much of said two-thirds of his estate as was directed to go and be transferred, and paid to his daughter, should cease and be determined.
The will then provided that ill case the daughter should leave lawful issue her surviving at the time of her death, so mnch of Ms estate as should be held under the provisions of his will in trust on the death of his daughter should thereupon go and descend to the ' issue of his daughter in the same manner as-would the personal estate of his daughter according to law in case of her dying intestate'.- But if, on the-death of his said daughter, she should not leave lawful issue her surviving, and should leave his- wife Adeline her surviving, then the testatd'r provided that the interest and income thereof should be applied to the use of or be paid to his wife for her use during her life. ¡
• The téstator further provided that so much of Ms estate as should be held in trust under the provisions of the will before and at the decease of1 his" daughter without leaving lawful -issue her surviving at the timé of her death, if his said daughter should have survived, his wife, should, upon the death of his daughter, go and descend to *253his relatives who would be entitled to his personal property under the Statute of Distributions of the State of New York in case of his dying intestate without leaving a widow or any child or any representative of a child; and, further, that if his daughter should have died without leaving lawful issue her surviving at the time of her death, and she should have left his wife her surviving, then so much of his estate as should be held in trust under the provisions of the will before and at the death of his wife should, upon the death of his said wife, go and descend to his relatives who'would take his personal estate according to the provisions of the Statute of Distributions of the State of New York in case he had died intestate without leaving a widow or any child or any representative of a child.
The testator’s widow died in the year 1880, during the lifetime of the testator’s daughter, who died on the 1st of April, 1894, leaving no descendants, no child or children, or the issue of any child or children.
■ As already stated, the question involved is whether by the provisions of the will providing for the distribution of his estate upon the death of his daughter without issue, his wife being already dead, the testator meant that the estate should be distributed among those persons who were then his next of kin, or whether his next of kin living at the time of his death were intended to be his beneficiaries.
And, as above mentioned, the rule seems to be, that where final division and distribution is to be made among a class, the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made, unless there is something in the will which shows a different intention upon the part of the testator.
When we consider the language of this will, it seems to us that it is clear that the persons whom the testator had in mind as his next of kin, and who were made beneficiaries under his will upon the death of his wife and the death of his daughter without issue, were those persons who would be his next of kin upon his death.
It is true that the enjoyment in possession of the trust fund which is provided for in the will relates to the time of the termination of the intermediate estates. The testator says that, upon the termination of his intermediate estates, the portion of his property held in trust should go and descend to his relatives who would be entitled *254to his personal property under the Statute of Distributions. The will further says that the class who are to take are his relatives who would be entitled to his personal property under the Statute of Distributions of the State of New York in case of his dying intestate without leaving a widow or any child, or any representative of a child, showing clearly that he had in mind a class which would be in existence at the time of his death, and not a class which would be in existence- at the death of his child, his wife being already deceased; •
It cannot be imagined that the testator would exclude persons from a class which he knew must be out of existence before the class could be determined. If .the contention of the.respondents is correct, the class could only be formed after the death of the widow and the childand, if this was the class which the testator had in mind, why should he exclude them in his designation of the class ?
It seems to be apparent, when we take this into consideration, that he had in mind the class which would exist at the time of his death, which would have been his wife and daughter; and that he thought it necessary to exclude them as the class which he mentioned, because, without such exclusion, they themselves would form the class, which was not his intention. His intention was that this estate should go to those persons who would have been his next of kin if he had died unmarried and childless. In other words, that the persons who were to take were those who would have taken if his wife had died and liis. daughter had died without issue during his lifetime. In order to prevent the estate from vesting in those who, under the Statute of Distributions, would have been his next of kin at his death, he excludes them and says the trust property should go and descend to his relatives who would be entitled to his personal property under the Statute of Distributions in case of his dying -intestate without ■ leaving a widow or any child, or any representative of a child; and, furthermore, the contingency which he mentioned, a,s establishing the class referred to, what would have been the case upon his death intestate, and evidently contemplated the condition of affairs which would exist at the time of his death, excluding certain persons from consideration. It is the class which would exist at the time of liis death, provided he left him surviving no wife, child or descendant of a child. Those are the persons whom he had in mind and *255intended to be the beneficiaries under his will; and those persons took a vested interest, and the vesting was not suspended until the period of distribution, but only the right of. enjoyment was postponed. This construction also brings the case in harmony with the rule which requires the vesting of estates if the intention of the testator will permit. And, having regard to his language and to the class which he evidently had in mind, it seems to be reasonably clear that he was considering a class of which he had knowledge and not one which was to spring up in the dim future.
We are of opinion, therefore, that the construction placed upon the will by the learned court below was erroneous, and that the judgment should be reversed and a judgment entered in accordance With the views expressed in this opinion, with costs to plaintiff and defendants appellants to be paid out of the estate.
Patterson and Ingraham, JJ., concurred; Williams and O’Brien, JJ., dissented.