I concur in. the conclusion that this judgment should be affirmed. The appeal involves the interpretation of the 4th clause as amended by a codicil of- the will of Joseph Staples, Sr., and the point in dispute isj whether his -son Joseph Staples, Jr., took such an interest in a share of the residuary estate passing under the father’s will as enabled him to dispose of that share absolutely by-his own will and testament.. The general scheme of the father’s will, omitting reference to gifts of specific legacies, is a trust of the residuary estate in executors to pay income to the testator’s widow during her life, with a power to resort to the principal in case-of need for her'support, and upon her death the whole residue to go to the testator’s children in equal shares “ absolutely and forever.” The provision is then made, “ in the event of the death of any of my children leaving issue him or her surviving such issue shall take the share or portion of my said estate and property which the parent would have taken if living.” The codicil will be considered hereafter.
It is quite apparent that, under the terms of this will, the children of the testator took vested remainders. They were all living when he died and, upon the determination of the particular estate limited on the life of the widow,, would have been entitled to -possession-. There was nothing contingent in their right. They had the present capacity to take, .for, when the 'will became operative,, neither the persons upon whom nor the -event upon which the i-emainders weré to fall into possession was left uncertain. The interposition of trust term did not affect the vesting in interest. (Matter of .Tompkins' Estate; Verplanch v. Tompkins, 154 N. Y. 634.) But,, although a remainder may- be vested in interest, it may also be' divested by the happening of some event contemplated and provided for by the testator and a substituted gift, of the remainder take- effect in its place. The ordinary illustration of such a case is, where the remainder is given-to one in fee, but in the; event of his death without issue, .then over to a different person. • Here the gift is of a share to the_ son subject to passing over to that son’s issue, in the event of such son dying. When ? During the lifetime of- his father*, or during the continuance of the particular estate % - If the former, then the remainder vested absolutely and indefensibly and passed under the will of the son; if the latter, the children of the son *323took by substitution and as purchasers under the will of their grandfather.
In the recent case of Becker v. Becker (22 App. Div. 234) Hr. Justice Herbiok has collated and commented upon the leading decisions of the Court of Appeals relating to limitations by will of estates upon a death either before or after that of a testator, and it is unnecessary to go over that subject again. ■ The determinant consideration is what was the intention of the testator. In this case the learned justice at Special Term held that the words “the death of any of my children,” as used by the testator, referred to death during the lifetime of the widow, and that interpretation was authorized. The testator fixed a time or period to which the death of any of his children was referable. The words as used must be read in connection with the codicil as well as with. the original 4th clause. In that codicil there is a specific legacy given to a daughter payable, after the death of the widow, out of the estate then in the hands of the trustees, and it is provided, “ upon the death of my said wife I give and bequeath” the specific legacy. “All the rest, residue and remainder of my estate and property I give, bequeath and devise unto all my children, including said Josephine A. Esler to le divided share and share alike,” etc., and in all other respects his will, including the substituted gifts, is ratified and confirmed. Reading the 4th clause as thus modified, and still retaining the provision as to his children dying, it appears that he intended to refer to the death of his children during his wife’s life and not during his own. The direction to divide mentioned in the codicil did not postpone the vesting in interest (Manice v. Manice, 43 N. Y„ 303), but the remainder in Joseph Staples, Jr., was divested by his death during the lifetime of his mother, as in Gamp v. Gronkright (59 Hun, 488). I, therefore, concur in the affirmance of the judgment.
O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.