I concur upon the second question as to the annuity to Beatrice Ray; but dissent on the",first question as to the right of Alexandra S. Hamilton to participate in the Broadway and Spring street property for the reasons given by the learned referee.*
Judgment modified as directed in the opinion, with costs to aL parties appearing upon the appeal to be paid out of the estate.
The following is the opinion of the referee:
Hamilton Odell, Referee:
By his will Robert Ray Hamilton gave to his brother, Schuyler Hamilton, Jr., an estate for life in the premises in question, and directed that upon his death "the same shall go with my residuary estate." All of the residue of his estate he devised and bequeathed to the children of his said brother Schuyler. If either child should die before becoming twenty-one years of age, his "share" should go to the survivors. If all of the children should die, the whole of the residue was given to other designated parties.
At the time 'of the testator’s death Schuyler Hamilton, Jr., had three children living. A fourth child has since been born, and the question presented is whether the fourth child is entitled to claim under the residuary clause of the will. In other words, whether the word “ children ” in the residuary clause refers only tO' *140children of Schuyler living at the death of the testator or includes after-born children as well.
It seems to me that the intention of the testator is free from reasonable doubt. He was Unmarried.' His -nearest kindred were his father and Schuyler Hamilton, Jr., his only brother.. Beatrice "Ray was his adopted daughter. For her he made provision in the form of an annuity which was charged upon his -‘ property in the city of Brooklyn.” He gave a few specific legacies. To his brother he gave a life estate in the premises which are sought to be partitioned in this action. The 1'emainder of those premises he made a part of his residuary estate (House v. Raymond, 3 Hun, 44); and all of his residuary estate he gave to “the children” -of his brother. So that, so far as these premises are concerned, his wish was that they should belong to his brother and his brother’s children — to him for life, and ■to them in fee upon his death, or to such of them as should attain the age Of twenty-one years. The gift of the fee was not to the brother’s children then living, or to the children who might be living at the father’s death, but to such of the “ children” as should attain twenty-one years of age, or to the “children” provided, they attained that age. I cannot see how the case can be distinguished ■from' Stevenson v. Lesley (70 N. Y. 512). There the gift of the residuary estate was in trust for the children of the testator’s son and daughter to be paid and conveyed to them as they respectively became of age ; and the court held that each of the grandchildren took “a vested remainder in fee of his or her Share, .expectant upon the termination of the trust at his of her majority; ” that the gift was to a class, to take effect in enjoyment at a future time; and that a child of the ■testator’s son born after the testator’s death and before "the time for distribution had arrived, was entitled to a share of the estate. So here, the gift is to the children of the testator’s brother; it is to take effect in enjoyment at future time, that is, on the death of Schuyler Hamilton, Jr.; each of the children living at the death of the testator took a vested remainder in fee, subject to be divested on his or her-death before becoming twenty-one years "of age, and subject also “ to open and let in children born thereafter; ” and, therefore, the infant defend*141ant Alexandra Schuyler Hamilton is entitled to a share of the remainder. In Monarque v. Monarque (80 N. Y. 320) the testator gave to his wife the use, during her life, of all his real and personal property. He then directed as follows : “ 1 give and bequeath the income arising from my estate to my daughters (naming them) to be divided between them, share and share alike, during their and each of their respectivé natural life, and remainder to their respective children and to-their respective heirs and assigns forever.” The court held that the manifest design of the testator was to give successive life estates in the property, first to the wife and then to the daughters, remainder in fee to the daughters’ children, and that the remainder so given vested upon the testator’s death in the children of his daughters living at that time, subject, however, “ to open and let in after-born children who might come into existence during the life of the mother.” The-same general rule is declared in many cases, including Matter of Brown (93 N. Y, 295) and Byrnes v. Stilwell (103 id. 453), cited by Mr. Vollmer, guardian for the children of the first marriage of Schuyler Hamilton, Jr. He sees reasons why those cases are not applicable to the facts of the present case which I am not able to discover.
It is objected that, as the residuary estate consists in part of personalty and in-part of the remainder of the premises in question, and as the parties entitled to-share in the personalty were determined at the death of the testator, and as the infant Alexandra is excluded from taking any share thereof, the same rule must govern as to the said remainder, although the time for the “ distribution ” of the remainder is postponed until the death of the tenant for life. It is conceded that such is the rule of the English courts. I do not find that it has been so decided in any court of this State. The general rule 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 directed .to be made.” (Matter of Baer, 147 N. Y. 353; Bisson v. West Shore R. R. Co., 143 id. 130.) In the present case it does not appear that at the death of Robert Ray Hamilton there was any part of the residue of his *142estate that was immediately distributable. But if it then had been, it is difficult to see why the general rule above referred to should be overridden or nullified as to property which was not to be distributed or vest in possession until the happening of a future event. In Britton v. Miller (63 N. 0. 268) the facts were as follows: A. J. Spivey died in 1854. By his will he gave certain real and personal' property to his wife for life, and after her death to his sister, Margaret Britton. Margaret Britton died in 1864, leaving a will by which she gave her entire property to the children of her brother Stephen and of her sister Mary, their heirs and assigns forever. Mrs. Spivey, the life tenant, died in 1867. When Margaret Britton died her brother Stephen had one child, who died in.September, 1864. Before the life tenant’s death another child was born to him, and the question, before the court was whether this after-born child was entitled to share in the remainder, which had been given by Spivey to Margaret Britton, and by her given to Stephen’s and Mary’s children. The court said that the estate of .Margaret Britton which she had in possession was to be divided “among those who answered the description at the time of her death; and -the property in remainder Is to be divided among those who answered the description at the falling in of . the life estate, and those who legally represent such as -may die during the life of the life tenant,” and that, therefore, Stephen’s daughter Margaret, born of a second marriage, after the death of the testatrix, but during the life of the life tenant, was entitled to a share in the remainder, '“.which opens so as to let in all who answer the - description at the time of -the falling in of the particular estate.” Annable v. Patch (3 Pick. 360) is also cited as an authority for the same rule.
The case of Worcester v. Worcester (101 Mass. 128) is not at variance with these decisions. There the real estate was directed to be sold as soon as might be advisable, for the purpose of making such distribution. . The court said that the whole real estate might be sold including the remainder, after the life estate of' the widow, and the proceeds applied to the residuary legatee; that it was not a devise of the remainder after the life estate of the widow, but was to take effect and to be divided as a pecuniary legacy, and that “ the fights of the legatees afe fixed according to the time when,they.were entitled to-call for the distribution.”
I am inclined to think that the.annuity given, to Beatrice Bay Hamilton is a *143charge upon the residue or remainder of the premises in question. If the bequest had been simply a gift of §1,200 a year, with a direction to the executors to pa.y that sum to the annuitant during her life, it can hardly be doubted that it would have been the duty of the executors to make provision for such payment out of the estate to the exclusion, at least, of the residuary devisees. (Rowe v. Lansing, 53 Hun, 212; Merritt v. Merritt, 43 N. J. Eq. 11.) “If there is a gift of an annuity and a residuary gift, the annuity takes precedence, and the whole loss falls on the residuary legatee.” (Croly v. Weld, 3 De G., M. &.G. 995.) Is the rule made inapplicable by the fact that by his will the testator charged this annuity upon his property in the city of Brooklyn? I think not.. In Pierrepont v. Edwards (25. N. Y. 128) the court said that “ when the testator bequeaths. * ** * a life annuity in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular way or out of a particular fund.” There can be no doubt, I think, that the testator’s intention was that this annuity should be paid “at all events.” I cannot believe that by charging it upon specific property he intended to exonerate the rest of his estate. I know of no rule of law which requires such a construction of this provision of the will. In Pierrepont v. Edwards the direction was to x>ay the testator’s wife an annuity out of income. The income proving insufficient, the principal was held liable for the deficiency. Ho fact appears in that case which materially distinguishes it from this one. The proof shows that the testator’s Brooklyn property at the time of the making of his will was heavily incumbered and largely unproductive. It can hardly be claimed that his intention was that the annuity should be .paid only out of the income of that property or out of income derived from its proceeds if sold, or that the annuity ■ should fail in case the property should be absorbed by the incumbrances. But the claim of the annuitant is subordinate to that of the life beneficiary of the rents and profits. (Conron v. Conron, 7 H. L. Cas. 168.) In that case the testator made specific devises of portions of his real estate. By a codicil he declared, “I charge and encumber all my estates of every description, both real and personal, with the following'legacies.” It was held that the legacies were not a charge on the estates which had been specifically devised.'