The executors have rendered their accounts, which have been settled, and they are ready to pay over and deliver to the parties entitled, the estate and property remaining in their hands. The Surrogate is called upon to decide who these' parties are.
The property and estate of the testator are claimed
1st. By the executors of the last will and testament of the last surviving daughter of the testator.
2d. By the brothers and sisters of the deceased.
The testator left two daughters, his only issue surviving, and who were his next of kin and heirs-at-law. Had he died intestate, his property, both real and personal, would have descended and been distributed to them.
The will gave the use of his whole property to these daughters, and to the survivor of them, for life, and upon the decease of these daughters, to their children. In ease of the death of either, without issue surviving, then the children of the surviving daughter to take the whole estate'.
The testator provided for the contingency of his daughters leaving issue at their respective deaths. But he made no provision for the" contingency of both daughters dying without issue surviving them. And the will is silent as to the happening of such an event.
This latter contingency has happened. Both daughters of the testator have died, without either having ever married. The last survivor has made a will whereby she disposes of the whole property; which will has been admitted to probate, and under which will her executor claims.
*334The limitation of the remainder of the estate to the children of the daughters, was a contingent remainder, so long as they had no children. The reversion expectant upon the contingency contemplated, had it happened, would have vested at once. ' It never did happen, and the testator has made no disposition of the remainder!" ' '
.. It results, that .the reversion, not being disposed of, descended to the heirs of the testator at the time- of his death. These were his two daughters.
“ If a contingent remainder be created in conveyances, or by disposition by will, the inheritance, in the meantime, if not otherwise disposed of, remains in the grantor, or descends to the heirs of the testator, until, the contingency happens; this general and equitable principle is of-acknowledged .authority.” (4 Kent Com., 257; Purefay v. Rogers, 2 Sand. R., 380; Wood v. Keys, 8 Paige R., 365.)
The estate must vest somewhere; there can be no abeyance ; and it can vest only in the heirs, at law of the testator, upon whom the property and estate is cast, at the moment of the-testator’s death. -
The same principle precisely would be- applicable, if it be considered that the . property of the testator, being given to-trustees, vested in them as trustees. The testator has made no disposition of the remainder at the death of his daughters; - there is a resulting trust in favor of those who were his next of kin and heirs at law at the time of his death, and these were his daughters.. (Wood v.Keys, ut supra.)
Under either aspect of the case the daughters, were entitled, and these executors must account "to the executor of the survivor.