It was apparently assumed by both parties at the trial, and is here, that if the legacy or devise to Walter T. Perry vested, so that upon his death it went to his heirs or representatives, then the estate of Mrs. Van Camp represented by her executor, the defendant Levi Fowler, would be entitled to the fund. The controversy was between the representatives of the estate of Mrs. Van Camp holding the vested rights, if any, of Walter T. Perry, upon the one hand, and the defendants, the present heirs and next of kin of Oliver H. Perry, upon the other. The claim of the plaintiff is that the bequest and devise to Walter T. Perry passed an interest that vested at the time of the death of the testator. We think that this position is sustained by authority. There is here a direct gift to Walter T. Perry, his heirs and assigns, and it is within the rule laid down in Re Mahan, 98 N. Y. 376, that, if there be a direct gift to legatees, a direction for payment at the happening of a certain ■event should not prevent its vesting, and therefore the personal representatives of a legatee, dying before the event happened, shall be entitled to receive it when payable. In that case, as also in Goebel v. Wolf, 113 N. Y. 405, 21 N. E. Rep. 388, there was an intervening trust for the support of the widow and of children until majority. This did not prevent the vesting. The use of the expression, “ when he, my said son, shall arrive at such age of majority, ” -did not prevent the vesting. 1 Jarm. Wills (5th Ed.) 806; 4 Kent, Comm. 232. If or' did the expression, “ from and after the decease of my said wife.” Livingston v. Greene, 52 N. Y. 118; Bedell v. Guyon, 12 Hun, 396. The bequest was residuary. The circumstance that the principal might be reduced in the operation of the trust does not change the result. Mitchell v. Knapp, 8 N. Y. Supp. 40, and cases there referred to. But suppose, as is claimed by defendants, the gift did not vest, but passed as undisposed of property, it would not go to the defendants, the present so-called heirs and next of kin. It would go to and vest in the heir and next of kin, according to the situation at the time of the death of the testator. Rose v. Clark, 8 Paige, 574; 2 Williams, Ex’rs, (6th Amer. Ed.) 1591, note. The fact that the distributee •died before the time of distribution would not affect the rights of his representatives. It follows that the heirs or representatives of Walter T. Perry are entitled to the fund. But it is urged by the defendants that the plaintiff is not in a position to maintain this action. The court below passed upon the merits, and did not in terms consider this question. The claim of the defendants is that, if any one could bring the action, it must be the personal representative of Mrs. Van Camp. Still her executor refused to bring it, and in such a case the beneficiary has a right, somewhat within the discretion of the court, to bring an action for the benefit of the estate. This discretion, so far as it was exercised by the trial court, was in favor of the maintenance of the action. This result should not be here disturbed. Assuming, then, the plaintiff has the same standing that the executor of Mrs. Van Camp would have, the case of Wager v. Wager, 89 N. Y. 161, 166, is authority for the maintenance of the action. This is on the assumption that Mrs. Van Camp succeeded to all the rights of her son. Ib point was made at the trial, and is *4not here, that there was any occasion for the appointment of an administrator de bonis non of the estate of the son in order to fully vest in the mother’s estate the rights of the son. She was the sole beneficiary of his estate. The defendants further claim that the judgment obtained by Mrs. Van Camp in 1868 is a bar. The court at special term held otherwise, and the defendants did not appeal. The plaintiff in his notice of appeal expressly excepted that provision in the judgment. We do not consider that question. The pendency of proceedings in surrogate’s court was not pleaded as a defense, and is not available here to the defendants. It follows that the judgment should be reversed. Judgment reversed, and new trial ordered, costs to abide the event.
Hardin, P. J., and Martin, J., concur.