(dissenting):
I do not concur with Mr. Justice McLaughlin in his disposition of this appeal.
The testatrix executed a last will and testament on the 27th of April, 1894; she then had one so'n unmarried and six daughters, all over twenty-one years of age, except Anna who was nineteen years of age. She was the owner of a house, 27 West Thirty-second street in the city of New York, and' in addition to that had a considerable property, the whole estate amounting to about $500,000. The sou was of feeble mind and unable to care for himself and she evidently wished to provide a home for him and for her unmarried daughters. By the 1st subdivision of the 2d clause of the will, to accomplish this purpose, she expressed her wish that her unmarried daughters, or such of them as desired to live together, with her son, should live in one household, whether at her present home, or elsewhere, and directed her executors and trustees to keep the house 27 West Thirty-second street, New York, in good repair and condition, and to pay any taxes or assessments which might be a charge against the property and to leave in said house the furniture and other property therein at the time of her death for the use of her said unmarried daughters and for her son during the lives of. the two youngest of her daughters who should survive lier, but only so long as any of her daughters remaining single might choose to make it their home, and further directed her executors and trustees to reserve out of her personal estate'a fund not exceeding $20,000, the net income of which should be applied to the payment of the expenses connected with this house.
This clause shows'that the testatrix had in mind the fact that she had unmarried daughters and the contingency of their subsequent marriage. She wished to provide a home for her son and for her unmarried daughters so long as they should remain unmarried, and thus expressly provided that upon the marriage of any of her *316daughters who should be unmarried at the time of her death, her right to occupy the house should cease upon marriage. To confine the use of her house to unmarried daughters and to exclude therefrom a daughter married either before or after her death, this provision was inserted: She, therefore, considered the contingency of the marriage of one or more of the daughters after her death and provided that the right to use the house should terminate upon the marriage subsequent to her death of any of her said daughters. Then by the 2d paragraph of this clause of her will she directed her executors and trustees to set apart out of her estate a share thereof for the .benefit of her son John. This provision was to take effect at the time of her death. The executors were directed to hold this share in trust during the life of John, and to pay to John or to apply to his use, support and comfort, from time to time, in their discretion, so much of the net income thereof as might be in their judgment necessary for his proper comfort and support. The will as originally drawn provided that upon the death of her said son John the said share held in trust was given to her surviving daughters in equal shares. . As she had seven children living at the time of her death, she, by this paragraph, disposed of one-seventh of her estate. She applied that share for the benefit, of her son John during, his life, and upon his death she gave the share to her surviving, daughters share and share alike. The whole share was thus disposed of, and futurity as to the disposition of the property' was nowhere expressed. The words used were words of present gift. There was no indication of an intent to postpone the vesting of the estate, but it clearly was to vest upon the death of the testatrix, in the trustees for the life of John, and the remainder in her surviving, children. The share of each daughter surviving the testatrix would thus have vested in each daughter, and one-sixth of the one-seventh of her estate which constituted this trust fund would have belonged absolutely to each daughter, the possession to be' postponed until the termination of the trust for John’s benefit.. This seems.to me clear, so that it does not require authority for its support.. The later cases of Bergmann v. Lord (194 N. Y. 70) and Stringer v. Young (191 id. 157) are, however, directly in point. When the will thus prepared was presented to* the'testatrix for execution she directed that in place of the word *317“surviving” there should he inserted the word “unmarried,” so that the provision read; “ Upon the death of my said son, I give, devise and bequeath the said share to my unmarried daughters in equal shares.” There was no change in the other phraseology of the clause, the. evident intent being to confine the remainder of this trust fund to those of her daughters who were unmarried rather than to those who survived. The words were still words of-present gift, and the remainder of this trust fund was presently disposed of. Those sharing in it were to be her unmarried daughters. The bequest and devise was by the testatrix, and it was not-a case of a class among which the trustees were to divide the property upon the termination of the trust, but a present gift of a remainder to her unmarried daughters; and as was similarly said by the Court of Appeals in Matter of Smith (131 N. Y. 239): “ The construction of these words is the same as if the testatrix had named each of her unmarried daughters in place of using the words ‘ to my unmarried daughters in equal shares.’ ” There is no intention that the vesting should be postponed until the time of distribution, and the share having vested, there is nq intention that it should be divested by reason of either the death or marriage of any daughter during the continuance of the trust. It seems to me obvious that upon the death of the testatrix the remainder in this share vested absolutely and that neither the death nor marriage of one of the daughters who was unmarried at the death of the' testatrix would divest a share which had vested in,each unmarried daughter on the death of the testatrix. That this is the construction of this clause of the will appears from the principle applied by the Court of Appeals in Matter of Baer (147 N. Y. 352). There the trustees were directed upon the termination of the life estate to convey the remainder to-children and lawful heirs of the testatrix’s brother Harmon, deceased, share and share alike per stirpes. There the duty was imposed upon the trustees to distribute the remainder when the trust terminated by the death of the life tenants among the children and lawful heirs of the deceased brother, and it was indicated quite clearly that the testatrix did not intend that the remainder should vest upon her death in the then surviving children and heirs of her brother, but should be postponed until the time of division and distribution arrived, the court placing its decision upon the ground *318that there was not in the devise any direct or immediate gift to the children or heirs of the brother, but a direction that the trustees should convey to them at a future time on .a certain contingency. It was a case in which futurity was annexed to the substance of the gift, so that survivorship at the time of distribution was an essential condition to the acquisition of an interest in the subject of the gift; but in this case there was a present gift of á remainder to the testatrix’s'unmarried daughters and no duty devolved upon' the trustees to distribute the trust estate upon the death 'of the life beneficiary. The 3d paragraph of this clause of the will provides for the distribution of the rest, residue and remainder of her estate. There had been first set apart a house for the use of her son and unmarried daughters so long as they should remain unmarried and one-seventh of her estate for the use of her son John, to be held for his benefit during his life, with a remainder over to her unmarried daughters in equal shares ; and the rest, residue and remainder of her estate was to be invested by her trustees during the lives of the two youngest of her daughters who might survive her, but not beyond a period of ten years after the date of her death, the income from which was to bepaidin equal shares to her children, excepting her said son John, and upon the expiration of the said period of ten years or sooner termination of the said trust, she gave, devised and bequeathed .the trust estate to her children, other than her said son John, in equal shares per, stirpes and not per capita, the issue of any deceased child or children to receive the share which the parent would have received if living. Here again is a present gift to all of her six daughters, the enjoyment of the principal being postponed for a period of ten years, unless sooner terminated by the death of her two youngest, daughters, and I assume that-it would not be questioned but that this remainder vested absolutely on the death of the testatrix'and would not be divested by t}ie death of either of her children, except where a child should die leaving issue, in which case the issue would take the. parent’s share. It seems to me that the whole will is consistent with but one construction, and that is that the remainder given in each of the 2d and 3d paragraphs of this clause of the will vested upon the death of .the testatrix and' was not divested by either, the subsequent death or marriage of any of her daughters except in the one contingency expressed in the *3193d paragraph of this clause of the'- will by which the share of a .daughter dying leaving issue was to pass to the issue.
I think, therefore, the court below was right, and that the judgment appealed from should be affirmed.
Dowling,. J., concurred.
Judgment reversed, and judgment directed to be entered in accordance with views expressed in the opinion. Settle order on notice.