■ This action is- brought by the plaintiff as trustee in bankruptcy of Edward ■ E. Gwynne, deceased, to set aside a conveyance of real estate, made by the-bankrupt to his mother, upon the ground that it was made with intent to hinder, delay and defraud creditors. Upon the merits of that question we see nothing to add to what was said by Mr. Justice Scott on the former appeal. .(129 App. Div. 112.) While there is some additional evidence, respecting prior advances of money by the mother to the son .that did not prove that such advances were loans or that they constituted the consideration for the conveyance in question. The death of the fraudulent grantor, however) presents a point which was not considered upon the former appeal.
While it is conceded that Edward E. Gwynne took a vested ■remainder under the. will of Edith O. Gill, the infant defendants, now assert that that interest was divested upon his death, and that they take under the will of Mrs. Gill. It is urged that the question thus presented should not be adjudicated in this action. .However, all of the parties are before the court. . If the contention of. the appellants is sound, it would, be an idle, thing to set aside the conveyance in question; and the failure to pass upon the question now will merely remit the parties to another lawsuit.
We are thus called upon to construe a clause of the will of Mrs. Gill. It is as follows.: “ On the decease or the remarriage of my said husband, I give and devise all and -singular the real estate above devised to my husband for and during his natural life, or .until he shall re-marry, to my brothers, David Eli Gwynne and Abraham Evan Gwynne in fee share and share alike. I also give *427and bequeath to my said brothers to be equally divided between them, all my personal property from and after the decease or remarriage of my said husband. Should either of my said brothers die before me, or before the death or the remarriage of my said husband not leaving lawful issue him surviving, then the survivor of them shall have and take the share of the said real and personal estate which the deceased if living would have taken. But if the deceased shall leave lawful issue then I give and devise and bequeath to such issue their parent’s share in said real and personal estate.” The said David Eli Gwynne survived the testatrix, but died before the life tenant, leaving him surviving his son, the said Edward E. Gwynne. The infant defendants are the children of said Edward E.' Gwynne. William F. Gill was living and unmarried at the time of the death of said Edward E- Gwynne.
It may be conceded that “issue” includes grandchildren, and that a gift to issue imports a gift to a class. The sole question is one of construction to determine the point of time fixed by the testatrix for determining those constituting the class who were to take. If that was not to be determined until the death of the life tenant, it must be conceded that, though the remainder vested in Edward E. Gwynne upon the death of his father, David Eli Gwynne, it became divested upon his. death before the death of the life tenant. If, however, the testatrix fixed upon a point of time for determining the members of tlie'class, anterior to the death of the life tenant, such remainder vested in the said Edward E. Gwynne, and was not subject to be divested.
The testatrix devised the remainder to her two brothers in equal shares. If she had stopped there, they would each have taken a vested remainder in an undivided one-half not subject to be divested. But by the subsequent provision she provided in express terms that the share of either should be divested upon his death before the death or remarriage of her husband, and that in case of his death leaving issue, his share should go to such issue. Such, issue plainly meant the issue living upon the death of the parent. If the said Edward E. Gwynne had left no issue, his uncle, the said Abraham Evan Gwynne could not have taken the remainder in question under the will, for by the express terms of the will the surviving brother could take the share of the deceased brother only in *428case the latter died “not leaving lawful issue him surviving.” That event, i. e., the death of the brother, fixed the point of time for determining who should take. The testatrix did not look so far into the future as to contemplate successive deaths and successive divestings, but provided only for one event, upon which the remainder was to become divested, and was at once to vest absolutely in the issue of the one dying, if he left issue, or in the survivor.
The said Ed ward E. Gwynne was the issue left upon the death of David Eli Gwynne, and he took a vested remainder, which was not subject to become divested.
We have examined the cases cited by the appellants, but none of them applies .to this case.
The judgment should be affirmed, with costs.
Laughlin, J., concurred.
Judgment reversed and complaint dismissed, with costs in this court and in the court below.