(concurring). Appeal from a decree and decision of the Albany County Surrogate’s Court which determined that the residuary clause in the will of James E. Weaver, who died and whose will was probated in 1912, bequeathed a contingent remainder to testator’s three sisters to become vested after the intervening use of all or a portion of the residuary by his widow, who under the will received the use for life, if she resided therein, of a house and furnishings, and the income from $50,000 so long as she resided in the house, and from $25,000 if she resided elsewhere. Upon the widow’s death, or when she no longer resided in the house, it was to be sold by the executors, “ the avails thereof to be added to ” the residuary estate.. At the death of the widow “ the principal of said trust fund to revert to and become part of ” the residuary estate. The appellant asserts ownership of one-twelfth of the residuary as the legatee of her husband who died in 1929, he having received one-half of the residuary estate of his first wife, Emma P. McNary, who died in 1927, she being the daughter of, and taking by will one-half the residuary estate of Jane P. Clapp, who died in 1926, and was one of the three sisters of James E.. Weaver and a residuary legatee under his will.
When James E. Weaver died at the age of seventy-seven years, his three sisters were all living and were respectively, seventy-one, sixty-seven and fifty-nine years of age, and his widow, who still lives, was fifty. All of the sisters are dead, each leaving descendants' who rJalm the Weaver residuary to the exclusion of the appellant legatee, upon the theory that it will not vest until the termination of the widow’s intervening use, and that under the language of the bequest these descendants take the shares which their respective mothers would have taken if living at the termination of the widow’s use. If the Weaver residuary vested at his death, and was alienable, appellant owns the interest which she claims therein. If it did not vest, she received no part through the successive wills, none of which specifically mentioned the Weaver estate or the residuary.
*29The residuary clause reads:
“13. All the rest, residue and remainder of my estate, I give, devise and bequeath to my sisters, Mrs. Jane F. Clapp, of Albany, N. Y., Mrs. Melissa A. Fonda, of Weehawken, N. J., and Mrs. Louise A. Courtney, of Albany, N. Y., to be divided between them share and share alike; the child or children of a deceased sister to take the share the mother would be entitled to.”
Matter of Crane (164 N. Y. 71); Matter of Baer (147 id. 348); Delafield v. Shipman (103 id. 463); Delaney v. McCormack (88 id. 174) do not apply, as the words of gift speak in prsesenti and not in futuro and are words of immediate purchase and not a direction to divide or pay at a future time. For reasons oft repeated, the law favors a construction whereunder an estate vests and unless a contrary intention is unequivocally and definitely expressed in the will, it will not be imputed. There is no presumption that the testator intended to create a contingent remainder. (Matter of Chalmers, 264 N. Y. 239; Matter of Watson, 262 id. 284; Cammann v. Bailey, 210 id. 19; Connelly v. O’Brien, 166 id. 406; Hersee v. Simpson, 154 id. 496; Goebel v. Wolf, 113 id. 405.) The legacies given by the residuary clause of James E. Weaver’s will vested upon his death, the distribution being deferred as to that portion of which his widow had an intervening use.
The clause, “ the child or children of a deceased sister to take the share the mother would be entitled to,” would have become effective only in the event that a sister, a residuary legatee, had died during the lifetime of the testator. Upon the death of James E. Weaver the estates granted by the residuary clause were alienable. (Matter of Chittick, 243 N. Y. 304; Stringer v. Young, 191 id. 157; Lewis v. Howe, 174 id. 340; Matter of Tompkins, 154 id. 634; McLean v. Freeman, 70 id. 81; Briggs v. Davis, 21 id. 574.)
The decree should be reversed on the law, with costs to the appellant payable out of the estate, and the matter remitted to the Surrogate’s Court for a decree in accordance with this opinion.
Decree reversed on the law, with costs to the appellant payable out of the estate, and matter remitted to the Surrogate’s Court.