The testamentary trustees held in trust $200,000 to pay the income to the stepmother, and upon her decease then to pay over the principal, without any words of direct bequest
*190or any prior interest in the income. This makes a gift postponed to the future, within the “ divide and pay over ” rule. This canon of construction is not limited to remaindermen unascertained. because described as a class, or to instances where the fund is not to go over till the beneficiary shall attain a certain age — although such are frequent illustrations of its application. While the stepmother lived, the corpus of this $200,000 vested in the trustees. Then, in the testator’s words, they are, “ upon her decease to pay over the principal of said Trust Fund, together with all interest and income earned and accrued and unpaid, to my brothers Henry Elmer Gibb and .Lewis Mills Gibb, share and' share alike, whereupon said Trust shall cease and determine.” Clearly this was to take effect in future and not in prcesenti. This was not on the testator’s death, but on the termination of the trust. It is, therefore, contingent under People’s Trust Co. v. Flynn (188 N. Y. 385, 394) — a case where the "legatees in remainder were not a “ class,” and without conditions that they should attain a certain age, as in some cases distinguished in the prevailing opinion. Here was the chosen and accurate language of a lawyer familiar with our testamentary law. This will was drawn in 1910, less than three years after the decision in People’s Trust Co. v. Flynn (supra) — a will contest of wide interest in Kings county. (44 Misc. Rep. 6; 106 App. Div. 78; 113 id. 683.)
■ Lord Kenyon placed a different construction where the court has to gather the intention from informal words in a will, from where, as in the case before him, correct and technical expressions were used throughout. (Denn v. Bagshaw, 6 Durn. & East, 512, 516.)
The construction that this gift had not vested is supported by the contrasted bequest outright to these same brothers of the testator’s bonds and stock in the firm of Mills & Gibb, which, in the form of exchanged securities, they took in their lifetime. A will is to be construed by the law at the testator’s death. Nevertheless, Chief Justice Parker said in 1717: “ the construction of the will must be according to the import and meaning of the words at the time of making of the will.” (Goodright v. Wright, 1 P. Wms. 396, 400.) It may not be wholly controlled by a prior decision that had influenced *191its wording. But where it appears to be the fact that a will is drawn under such a declared rule, then the stability of our law of testamentary construction, and the security of property rights, require that the constraint of some later, direct authority should guide us to depart from that rule, rather than to seek to gather a supposed purpose to give vested legacies equally to all the brothers of deceased. The testator’s legal intent does not require that the estates of these two remaindermen (so liberally treated) should be preferred to the testator’s widow and children, to whom it would go in the residuary clause.
I, therefore, would modify the surrogate’s decree, ■ and direct that the trustees treat and dispose of this $200,000 as part of the residuary fund under clause 12 of the will.
Decree of the Surrogate’s Court of Nassau county modified as to the interest that had accrued at the death of Sarah M. Gibb, which should be paid to her representatives; and as so modified affirmed, without costs.