The surviving executor of the last will and testament of James Short comes into court with this suit, for a judicial construction of the will of this testator.
All the property of the testator is given to the executors, with power of sale and disposition, in trust to manage the estate, invest the principal, collect the income, and apply and pay over the income to the five children, Mary Ann, Elizabeth, Ellen, Margaret and Agnes, in equal proportions, until Ellen arrived at the full age of twenty-one years, or, in case of her death, then until Margaret became twenty-one.
Upon the arrival of Ellen at the age of twenty-one years, or, in case of her death, when Margaret reached that age, the executors were directed to sell all the real property, and convert the present property into money, and then divide the estate equally between, the said children. Then comes this clause : “ Should any of my children die before such distribution, leaving issue her surviving, such issue shall take the share his, her or their parent would have been entitled to if living, and in the same manner; that is, in equal shares.”
At the testator’s death, in May, 18Y0, all the children were minors under the age of twenty-one years. Margaret died unmarried and intestate in December, 18Y6; Agnes died unmarried and intestate in September, 18YY ; and Mary Ann died intestate in May, 18Y8, leaving a husband, who is the defendant, Patrick Y. Murray. She was of full age at the time of her death. Elizabeth and Ellen are both living and of full age. Elizabeth is married, and Ellen is unmarried.
The defendant, Patrick Y. Murray, claims the share his wife would have received on the distribution, had she lived until that time came. This is on the theory that her interest vested at the death of the testator. There was no immediate gift to the children. All was given to the executors, to be divided among the children when Ellen attained the' age of twenty-one years. Until that time the title to all the property was in the exe*196cutors, and none but living children could share in the distribution. The right to share in the distribution was contingent upon the duration of the life of the beneficiary until Ellen became twenty-one years of age. Euturity is annexed to tlie substance of the gift and not to the time of payment. The gift is contingent, and did not, therefore, vest at the death of the testator. The surviving executor must hand over the property to the surviving daughters, and he may convey the real property to them on their request upon their execution of a full release.
The husband of the deceased daughter, Mary Ann, has no right to share in the distribution of the property.
The judgment must be affirmed, with costs.
Barnard, P. J., concurred; Gilbert, J., not sitting.Judgment affirmed, with costs.