— The policy was issued for the sole use and benefit of Rachel Hull, and in case of her death before her husband the amount of insurance was made payable to her children for their use, or to their guardian if under age.
It is contended that Lillian Hull, a grandchild of the assured, is not entitled to a distributive share of the proceeds of the policy, which, by its terms, are given to her children only as a class of persons; that the father of Lillian had only a contingent interest in such proceeds, and that there is by law no representation by descent as to personal property.
We are not left to the stringent rules of the common law as to contracts which have been the subject of adjudication and legislative enactment.
By the policy in question an irrevocable trust was created in behalf of Mrs. Hull and her children (Barry v. Equitable Life Assurance Society, 59 N. Y., 587). The same principles should be applied in its construction which govern testamentary disposition of property. The intention is clear that in the event of Mrs. Hull’s death before the falling in of the policy, it was to enure to the benefit of her children generally. There is no limitation to class or condition (See Teed v. Morton, 60 N. Y., 506 ; Low v. Harmony, 72 N. Y., 408), nor to living or surviving children. Evidently this phraseology was intended to include the children of a deceased child (Murphy v. Harvey, 4 Edw. Ch., 131 ; Campbell v. Rawson. 18 N. Y., 412 ; Prowitt v. Rodman, 37 N. Y, 42 ; Bowne v. Underhill, 4 Hun, 130 ; Continental Life Insurance Co. v. Palmer, 42 Conn., -).
The rights of Lillian in the policy were contingent during the life of her grandmother; but upon the death of the insured the beneficial interest thereunder vested in the children and descendants of children of the assured who then had. present capacity to take. This distinguishes the case at bar from the class of cases where the question of an immediate gift and possession was involved.
*102Having reached this conclusion, it is unnecessary to consider the other branches of the case.
The defendant Lillian Hull is entitled to judgment in her favor for the one-fourth part of the insurance moneys, with costs to be paid out of the general fund.