These are two actions brought by the plaintiff to obtain a construction of the last will and testament of William D. Thompson,, deceased. In the first, the plaintiff asks for the construction of the 9th clause of the will, and in the secqnd, of the 3d clause. In the discussion we shall proceed in the inverse order.
The testator died on June 27, 1874, and his will was admitted to probate by the surrogate of New York county on August 10, 1874. *468He was unmarried, and his nearest relatives consisted of nephews, nieces, grandnephews and grandnieces, and to these relatives he left his entire estate except as he attempted, at least, to make, through his trustees, certain collateral bequests. As to these, however, no question, is presented by the present actions.
The testator was possessed of a considerable estate,' and the whole scheme" of thé will shows am unmistakable intent on his part to make specific disposition of his entire property. He evidently did not. intend to die intestate as to any part of his estate, and the disposition of his property is expressed with.a considerable degree of particularity.
By the 1st clause of his will he directs the payment of his debts; by the 2d he provides for the selection of bonds and stocks, amounting at par value to the sum of $500,000, and directs Ins executors to make a division. thereof into five equal parts so that the value of each share shall be $100,000. One of these shares, amounting at par value to $100,000, he bequeathed to his nephew John B. Thompson absolutely. By the .3d clause, which is the subject of the second ■ action, so far as is important to any question which the case presents, he bequeathed as follows :
' “ One other of said shares, .amounting at par to one hundred thousand dollars, I give and bequeath unto, my executors herein named, or such of them as shall qualify and act as executors of this my will, the survivors and survivor of them and their successors and assigns, upon the. trusts and to the intents and uses following — that is to say, to collect and receive the interest and dividends thereon falling due after my decease, and out of the net income to apply to the use of my nephew William D. Thompson, Junior, of Baltimore, in the State of Maryland, the annual sum of seven hundred dollars, to be reckoned from the time of my death, and payable half yearly ■ during his life; and the whole residue of such net income to apply to the use of Josephine, the wife of the said William D. Thompson, Junior, and their children, by paying the same to her for the support of herself and children during their minority; and as each child attains the age1 of twenty-one, he or she shall be entitled to receive one equal share of such surplus of income above seven .hundred dollars per annum, the same being divided into as. many equal shares as ■ there shall be children of the said William D. Thompson, Junior, and'Josephine, his wife; and one more share for the said Josephine, *469which she shall be entitled to receive for her own use during her life, after all the said children shall have attained the age of twenty-one..
“In case of the death of the said William. D. Thompson during the life of said wife, the portion of income hereinbefore set apart ■ for him is to be added to the other shares in equal proportion.
“ In case the said Josephine shall at any time marry another husband, the right to share of said income shall thenceforth cease. In which event, or in the event of her death during the lifetime of said William D. Thompson, Junior, the share of incomes hereinbefore set apart for her shall be added to the shares of the said children in equal proportion.
“ Upon the death of the longest liver of them, the said William D. Thompson, Junior, and Josephine, his wife, this trust shall cease, and the trustees shall forthwith transfer and pay over the whole of the trust property and the proceeds and increase thereof to the children of the said William D. Thompson, Junior, and Josephine, his wife, and if any of said children shall have died leaving issue, such issue shall receive their parents’ share.”
By the 4th clause he bequeathed another of said shares to his nephew Charles B. Thompson during life, with remainder to his issue, and if he should die without issue, the remainder to be disposed of as directed by his last will and testament; in the event of issue, the net income of said share to be applied to the children or issue, the issue of a deceased child taking their parents’ share during the life of the oldest child who should be living at the date of testator’s death; upon the termination of the trust by the death of said Charles R. Thompson or of his oldest child, to distribute the principal of said share according to the laws provided in case of intestacy. By the 5th clause the testator gives and bequeaths another share to his executors in trust to apply the net interest, dividends and income to the sole use of his niece Elizabeth Y. Thompson during her life; the subsequent disposition of the income and principal of this share is the same, as to the persons who take thereunder, as is contained in the 4th clause. The 6th clause, in like manner, vests another of said shares in' trust, the interest, dividends and income therefrom to the sole and separate use of his niece Mary Rebecca Thompson, and the subsequent disposition of this share, as to the persons therein named, *470is the same as in the two preceding clauses. By the 7th-clause the testator devised to his sister-in-law Rebecca R. Thompson, widow of a deceased brother, a life estate in certain real estate in the city of Baltimore, with remainder over to her two daughters, if they should survive her, or to their issue, if leaving the same, absolutely; and in case either of. the two daughters died during the lifetime of the mother, without issue, to the surviving daughter in case of her survival or death, before her, leaving issue; if neither of the daughters survived or left issue, the property then to form a part of the testator’s residuary estate. The 8th clause is advisory as to the expenditure of income by the nephew Charles and the nieces Elizabeth Y. and Mary Rebecca. The 9th .clause, which is the subject of the first action, reads as follows: ,
“ The foregoing bequests being first fully provided for, and not otherwise, I give to my nephew John B. Thompson, for his life, my building and lot No. 139 Broadway in the City of New York; and upon his death I give and devise the same to my said executors, the survivors and survivor of them, their successors and assigns, upon trust, to receive the income thereof during the life of John C. Thompson, son of the said John B. Thompson, and apply the same as follows: One-quarter to the use of the said John C. Thompson and one-quarter to the use of his mother, the wife of the said John B. Thompson; and if she shall die or remarry within said term, then from that time to apply the entire half of said income to the use of the-said John C. Thompson and the other half to apply during the-whole of said term to the use of all the other grandnieces and grandnephews of mine in equal shares, the issue of any deceased taking their parents’ share; and upon the death of the said John C. Thompson, to sell and convey the said property in fee, and to distribute the proceeds among all my grandnieces and grandnephews in equal shares, the issue of any deceased grandnephew or grandniece taking their parents’ share.”
The other clauses of the will are not important to any question arising in this case. The 11th clause, however, contains a comprehensive residuary clause, and provides that after all the other articles and provisions of the will have been fully complied with, the remainder is' devised and bequeathed, to his nephew John B. Thompson, to have arid to hold the same forever.
*471William D. Thompson, Jr., died in 1875, leaving Josephine, his widow, surviving, and Stephen J. Thompson, Marie Louise Norris and Annie O’Donnell, children of William D. and Josephine. ■ Stephen died April 27, 1897, having attained his majority, unmarried and without issue. He left a last will and testament by which he bequeathed his whole estate to his mother. Josephine, the mother, is still living, in consequence of which the trust created by the 3d clause of the will has not yet terminated. The second of the two present actions has relation solely to the disposition of the income which by the terms of the 3d clause was payable to Stephen J. in severalty upon his becoming of the age of twenty-one, and which had been set apart and paid to him at and prior to the time of his death.
But while the action only involves the present disposition of Stephen J.’s share in the income of the trust fund, nevertheless, as I view the case, it becomes essential in the determination of such question to determine, also, whether the corpus was vested in persons in being at the date of the testator’s death, or whether it was contingent and postponed until the time of the distribution of the corpus of the trust estate. If the estate was vested in persons in being at the date of the testator’s death, then we think it cannot be questioned that Stephen D. had a vested interest in and to the income which was set apart for him which would pass under his will to his mother Josephine. By the terms of the 3d clause the devise therein is to the executors named, and consequently the trust estate vested in them; but as there was no devise of any remainder to them, they simply took a vested estate, subject to the execution of the trust, which was limited to the life of the longest liver of William D. and Josephine, and upon the happeniug-of that event the only duty imposed upon them by virtue of this clause was to distribute among those then entitled to take. This was the entire estate which the trustees took (Matter of Tienken, 131 N. Y. 391), and such estate is entirely consistent with the immediate vesting of the estate in remainder at the date of the testator’s death. (Matter of Brown, 154 N. Y. 313.) The gift of the income under this 3d clause is, first, $700 per annum to William D.; then to the mother, Josephine, and their children, the same to be received by her for the support of herself and children during their minority, and by subse*472quent provision Josephine is given one equal share therein with the children after they have all attained their majority. The $700 tc William D. and the share to Josephine, in the event of the death of either or Upon the remarriage of Josephine, is . to be added to the principal of the share of the others entitled to take and divide in equal proportions. As to the children’s share, however, no such disposition is made, as there is no gift over of the income for support and maintenance during their minority nor after they attain their majority, and a specific share of the income is set apart to the use of the child reaching majority. . As to the income payable to Josephine during the minority of the children for the support of herself and them, it. is not necessary now to determine in whom such income was presently vested or what would be its disposition had one of the children died during minority leaving no issue, as no such question is now material. Upon any child arriving at the age of twenty-one years, such child took in severalty, and, so far as language is concerned, it is a gift absolute to such child and vested in him or her an interest absolute. While the language of the will is that the income shall. be applied to' the support of the children during minority, yet upon the payment over of the income when the child attains majority, no language is used indicating that it is to be used for support and maintenance.. In Earl v. Grim (1 Johns. Ch. 494) there was a gift of interest from the investment of the trust estate to certain named .persons without any direction as to the disposition of the residuum of the estate, the language being one-sixth part to each of the persons named and to the survivors of them, and the court held that the survivors of them was to be construed to refer to such of them as should be living at the testator’s death. The court held the rule to be that a devise of rents and profits of land was a devise of the land itself, and that the survivors in existence at the date of the' testator’s death took a vested interest therein. In commenting upon the case of Newland v. Shephard (2 P. Wms. 194) the chancellor, said: “ The testator devised the residue of his real and personal .estate to trustees, in fee, in trust to pay the interest thereof for the maintenance of his grandchildren until they should come of age or be married; and he went no further, nor made any other disposition of his estate; and yet this was held to pass the absolute property to his grandchildren after the age of twenty-one. This case has been *473questioned, and, perhaps, very justly, for there was an express limitation of the period of the payment of interest to the minority of the children; hut, in a case in which there is no such limitation, I apprehend the decision would be deemed correct.”
In the present case there was no limitation upon the payment of the income to the children except at the termination of the trust, when they took the whole of the trust estate. The same rule was also applied in Eldridge v. Eldridge (9 Cush. 516); Dawson v. Killet (1 Brown Ch. [1st Am. ed.] 107). By express provision of our statute (1 R. S. 773, § 2) the rules governing estates and interests in land, where they are founded upon statutes or general principles of law, are to be applied so far as practicable to like estates- and interests in personal property. The rule as laid down in Sehouler on Wills (2d ed. § 562) reads: “ Any present vested interest in the income carriesprima facie a vested interest in those who shall finally take the capital, nor does delay in settling the testator’s estate and paying over prevenía legacy from vesting at the time of the testator’s death. Directions to sell at a late period prescribed are consistent with a vested remainder.” (1 Jarm. Wills, 614.)
By the terms of this clause it is clearly evident that the children of William D. and Josephine took an immediate interest in the income at the date of the testator’s death. This income was then presently payable for their benefit during minority, and vested in them by express language upon their attaining majority; and, within the foregoing authorities, the conclusion would seem to be authorized that it was the intent of the testator to vest an estate in the persons in being at the testator’s death, to whom the remainder was devised ; and such vesting of the income will be controlling of the intention to vest the estate, unless by subsequent language of the will such intention is to be deemed excluded.
It is claimed by the appellants that the subsequent language of the devise clearly indicates that the estate was contingent and not vested within the meaning of the statute. (1 R. S. 723, § 13.) The basis of-this claim rests in the fact that the gift is not present but future, and that nothing is to be received from the' corpus of the trust unless the children are alive at the time of the division. *474This conclusion is arrived at by the expression contained in the will, that if “any of said children shall have died leaving issue, such issue shall receive their parents’ share; ” that this clause clearly indicates that the death mentioned is plainly one after the death of the testator before the time appointed for distribution, and the rule of many cases is invoked that where a time for distribution is mentioned other than the death of the testator, and there is an intervening life estate, the interest in the corpus does not vest until the time arrives for distribution. • But this is subject to the rule that if the gift be severed upon the instant from the general estate for the benefit of the legatee, and the interest thereon is paid to him until the period of distribution, the mere direction to pay at a subsequent time will not suffice to prevent the present vesting of the estate. The whole subject is always one of intention,, to be gathered from the particular clause and from the scheme of the will as a whole, the vesting of the estate to receive the most favor.at the hands of the court. Certain decisions have narrowed somewhat the application of these rules. In Clark v. Cammann (160 N. Y. 315) there was a devise of the trust estate to a mother for and during her natural life, with remainder over to her children, share and share alike, and to their lawful representatives forever, as tenants in common per capita, the issue of any child who may then be dead to take: his or her deceased parent’s share. The life tenant had two children in being at the time of the testator’s death. Both children died before the termination of the trust estate, without issue; and it was held that the estate was contingent and not vested. As there was no gift over to meet such contingency, the testator died intestate as to the fund. In that case it is noticeable that the children of the life ten- / ant took no beneficial estate in the trust fund at anytime, and could take none therein unless upon the contingency that they survived the death of the life tenant. They were remaindermen pure and simple, and could take in no other way. In the .present case the remaindermen in being, at the date of the testator’s death took immediately the income of the estate, and the receipt of such income by the terms of the will was continuous until the termination of the life estate. So that they instantly became vested with a beneficial interest therein upon the testator’s death. In Bowditch v. Ayrault (138 N. Y. 222) the will provided for the creation of separate and *475independent trusts to commence at the date of the testator’s death, and which might continue for the full term permitted under the statute. By a subsequent clause the trustees were directed to convert all the rest, residue and remainder of his estate and divide it among certain named children of the brothers- and sisters of the testator who should be living at the time of his death, and the descendants of such of said children as might be deceased when the estate was distributed ; and it was held that the gift to the children living at the time of the testator’s death imported a gift primarily to such children, and that futurity was not annexed to the substance of the gift within the meaning of that term, and that such children took a vested interest subject to be divested in favor of the heirs and next of kin of those who should die without issue, and the substitution of such issue in their place and stead.
It is at once noticeable that the clause in the will we are considering differs in essential respects from both of these cases. We have already noticed the difference between the present case and the Cammann case, and the difference between the former and the Bowditch case consists in the fact that the children who should take are named; but therein the children did not take any interest in the trust estates until the termination of the estate of the life tenant; while in the present case the children take an immediate beneficial interest which continues until finally merged by the distribution of the corpus of the estate. There is, therefore, much reason for holding that as the testator vested and intended to vest in the children of William D. and Josephine, who should be in existence at the time of the testator’s death, a beneficial interest in the income to be derived from the estate, it furnished the equivalent of the designation of the children which was found controlling in the Bowditch case. It is clearly distinguishable from the Cammann case in the fact that in that case no children were named and no beneficial interest passed until the termination of the estate of the life tenant. Here the devise is to the children of William D. and Josephine. None are named, but each was to share equally and the issue of each was to take. The devise, therefore, would appear to answer all the requirements of a devise to a class. It was the gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, and all took in equal *476shares dependent in amount, both as to income and corpus, upon determination of the ultimate number. (Matter of Kimberly, 150 N. Y. 90.) As they took an immediate beneficial estate, the whole clause of the will will be satisfied by construing the same as indicating an intent that the estate should vest in the children in being at the date of the testator’s death, subject to be divested in favor of the heirs and next of kin of a child dying without issue or the substitution of the issue in the event of the death of a child leaving issue and also to' open and let in after-born children. Such rule is well established and has been continuously recognized. (Monarque v. Monarque, 80 N. Y. 320; Matter of Brown, supra.)
If I am correct in the construction of this clause of the will, it follows that Stephen D. Thompson took a vested interest in the income of the trust fund and in the corpus of the estate. Such vested interest he could bequeath by . will, and having bequeathed it to'his mother, it vested his interest in her and she is presently entitled to the income, and will eventually be entitled to Stephen D.’s share in the corpus of the estate.
Much that has been already said applies with equal force' to the construction of the 9tli clause of the will, the subject of the first action. By its provisions the building and lot therein mentioned are devised to John B. Thompson, a nephew, during life, and on his demise the trust estate is vested in the executors who hold the same title as is vested in them by the 3d clause. This trust requires the payment to John O. Thompson, son of John B. and grandnephew of the testator, of one-quarter of the income during his life, one-quarter to the use of his mother during her life or until she remarry, in either of which events the whole of the one-half of the income is to be applied to the use of John C., and the other half applied during the whole term to the use of all the other .grandnieces and grandnephews in equal shares, the issue of -any deceased taking the parents’ share. This trust is to continue during the life of John O., when the executors are directed to sell and distribute the proceeds among all the grandnieces and grandnejfiiews in equal shares, the issue of any grandniece or - grandnephew having died to receive the parents’ share. There are only three items of difference between the devise in this clause of the.will and the bequest in the 3d clause; and these I regard as not being so *477material in character as to make the construction of the 9th clause other or different from that which I have applied to the 3d clause. These items of difference are, first, that the property devised is real estate; second, the individuals who are to take are a nephew, John B., who is the life tenant, John 0., his son, who is to receive a quarter of the income upon the life estate and a half in addition upon a contingency, and the devise of-the remainder of the income and corpus is to grandnephews and grandnieces and the issue of those who have died; and third, the executors aré charged with the duty of selling and conveying as well as distributing. In all other respects there is no difference. ,
The intervention of the two life estates, one as to corpus and the other as to income, does not change the effect of the devise, as the addition of a life estate fastened upon the income does not detract from the vesting of the eventual estate or destroy the trust created. Nor does the fact that the direction is to sell and distribute change the rule from that which applies in the present case to the direction to distribute alone. In tlie Bowditch case there was the direction to sell real estate and distribute the proceeds, but this was not regarded as sufficient to change the rule. The class of .persons who are to take the remainder of the estate are quite different from those who take under the 3d clause; but the remainder over embraces the children of William D. and Josephine Thompson. The 3d clause does not embrace the others; but the class is as definitely named in one provision as in the other, and as the language is, with respect to the class who shall take, almost similar, there is no reason, so far as I am able to see, why a different construction should obtain.
In one view of the 9th clause, however, there is a seeming anomaly, for while the trust estate is to continue, so far as the payment of income is concerned, during the lifetime of John 0. Thompson, a grandnephew, and the corpus is only to be. distribu ted upon his demise, yet a construction which vests the estate in the remaindermen on the -death of the testator, subject to be divested and to admit of substitution of issue and after-born children, also vests in John 0. Thompson an equal share as grandnephew of the- testator. There is nothing in the language used in this clause of the will indicating an intent to prevent his participation therein, except as he is given an increased share in the income. This does not have the *478legal effect to prevent the remainder from vesting in such person, the same as in the other persons who take. (Simonson v. Waller, 9 App. Div. 503.) This would only be accomplished by language showing a different intent. But when all the clauses of the will are read together, and especially the 3d clause with the 9th, it clearly appeal’s that although all the grandnieces and grandnephews are otherwise provided for in the several trusts of the estate, yet, notwithstanding such provision as is otherwise made, none are excluded from participation in the remainder of the property devised under the 9th clause. All of the children of William D. and Josephine are grandnephews and grandnieces,, and yet they take with all of the others in the corpus of the estate devised by this clause of the will. I am unable to find in the will any indication of an intent on the part of the testator to exclude John 0. Thompson from participation in the corpus of ■ the estate, except so far as the inference is to be derived from the fact that he is given a life interest in the income derived therefrom. But if this reason excludes him from participation in the corpus it would equally exclude the grandnephews and grandnieces' for whom provision is made in the 3d clause and elsewhere in the will. There is not the slightest indication, so far as I am able to discover, of any intent on the part of the testator to make any distinction between grandnephews and grandnieces, the children of the nephews and nieces who were the objects of the testator’s bounty. As there is no reason for putting a construction on the 9th clause of the will which does not apply with substantially equal force to the 3d clause, I conclude that its construction must be the same.
There are no other questions presented by the record which seem to require discussion. The judgments should, therefore, be affirmed, with costs to all parties payable out of the estate.
Rumsey, J., concurred.
In the first above-entitled action judgment modified as directed in opinion, and as modified affirmed, with costs to the appellants and the plaintiff to be paid out of the estate.
In the second above-entitled action judgment modified as directed in opinion, and as modified affirmed, with costs to the appellant payable out of the fund.