I suppose the share or legacy of Augustus Frederick vested in him in interest on the death of the testator, notwithstanding the declaration in the will, that the principal sums bequeathed to the children should vest in them respectively, when and as they should respectively arrive at the age of 21 years, and not before; and that having so vested, on his death without issue, the same is to be distributed in equal shares to his mother and surviving brother and sister, under the statute for the distribution of the estates of intestates, to take and hold absolutely in their own right.
By the declaration in the will, that the principal sums bequeathed to the children shall vest in them respectively when and as they arrive at the age of 21 years, and not before, the testator must be presumed to have meant, vest, fa possession, Such declaration thus construed, is consistent with the vesting of the shares in interest in the testator’s sons on his death; and so is the declaration, that in case any of the children of the testator should die before arriving at the age of 21 years leaving issue, such issue shall stand in the place of the deceased *437parent; for the statute for the distribution of the estates of intestates would place such issue in the same position.
[New York General Teem, October 2, 1858.Dames, Ingraham and Sutherland. Justices.]
There is no limitation over of the sons’ shares in case of their death without issue, except the limitation over to the father of the testator, if living; in case of his death, to the uncle of the testator; in case of his death, to the male heirs of the uncle, upon the extinction of all the lineal descendants of the testator at any time before all or any of the estate devised and bequeathed shall have vested in interest.
This limitation over, by its very terms, could not take effect until after the expiration of three lives in being at the death of the testator, and is therefore void. If valid, I do not see why it would not suspend the absolute ownership of the share of Augustus Frederick for the further term of the lives of his surviving brother and sister.
I at first thought that the share of Augustus Frederick was to be distributed, as a reversion undisposed of by the testator, on the death of Augustus Frederick without issue; but upon the whole, I think the direct absolute bequest to him of his share, without any valid limitation over, except perhaps to his issue, in case of his death leaving issue, inust control; and that the above is the better and more correct construction of the will, so far as the construction of the will is called for by the questions submitted to us.
I do not however think these questions so free from doubt as to have entirely justified eminent counsel in submitting this case to us without argument, or even points.