The Revised Statutes prohibit any suspension of the absolute ownership of personal property for a longer period than during the continuance and until the termination of not more than two lives in being at the death of the testator. In all other respects, limitations of future or contingent interests in personal property are subject to the rules prescribed by the same statutes in relation to future estates in lands. (1 R. S., 773, §§ 1, 2.)
One of those rules is that a future estate may be limited to commence in possession at a future day, without the intervention of a precedent estate, and upon a contingency respecting the persons to whom, or the event upon which it is limited to take effect. (1 R. S., 723, §§ 10, 13.) Applying these rules, the bequests to grandchildren, contained in the ninth clause of the will, are valid. All those legacies are present gifts of separate and distinct protions of the testator’s- property, and all of them must necessarily take effect completely within the period of one life in being at the death of the testator. The legacies to the grandchildren m esse, vested immediately upon the death of the testator. That to the grandchild who was born after the death of the testator vested immediately upon her birth, and if any grandchildren shall be hereafter bom, the legacies to them will vest in like manner. As to the grandchildren who were living when the testator died, there was not a moment’s suspension of the absolute ownership of the money given to them respectively, and as to the others, the suspension could not possibly last beyond one life in being, namely, that of the parent who was a child of the testator. It is true that the offspring of a son of the testator might not be born until *228months after the death of its father. Still, the gift would be valid for two reasons. 1. It was dejiendent only upon the life of the father. 2. A child en ventre sa Tnere must be treated as having been living at the death of its father. (1 R. S., 725, § 30 ; Mason v. Jones, 2 Barb., 252.)
It is not quite so easy to determine the legal effect of the sixteenth clause of the will. It is very evident that the testator intended to dispose of all his property. He had, by previous provisions of his will, disposed of all of it, excepting the sum of $30,000, and in this clause he attempted to dispose of that fund.
It is quite apparent, however, that the intention of the testator expressed in this clause could not be legally carried into effect, for to do so would involve a violation of the statute against accumulations of income, except for the benefit of minors during their minority, and of the statute against a suspension of the absolute ownership of personal property beyond the prescribed period. Nor can we separate the good from the bad, as has been done in several cases. Bor the gift is an entire one to classes of children and grandchildren. (Knox v. Jones, 47 N. Y., 390.) Indeed, the sixteenth clause contains no gift in express words, but the gift arises by implication only, from the direction to divide. Such a direction, no doubt, is evidence of a gift of the property to be divided, but it is also evidence that the gift was n'ot intended to vest in interest before the division. The rule, as stated by Jarman (ch. 25, vol. 2, p. 457, 5 Am. ed.), is that where the only gift is in the direction to pay or distribute at a future age, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is of the essence of the gift. (See also Leake v. Robinson, 2 Mer., 363-384; Leeming v. Sheratt, 2 Hare, 14, 22; 2 Redf. on Wills, 631.) No doubt a residuary gift should, if possible, be so construed as to vest at the death of the testator. But where the testator has embodied his gift in a direction to divide at a future time, surely there would seem to be no basis for such construction. The testator fixed the time for such division, namely, of part in five years after his death, and of the residue upon the coming of áge of his youngest grandchild, born within twenty years after his death. Such a gift is *229void, for the postponement of the .vesting is not dependent upon lives, but upon a fixed term of years. Future estates in personal property may be created, and the absolute ownership thereof may be suspended until the time for vesting arrives, but they must be limited by lives, and not by a term of years, however short. (Hone v. Van Schaick, 20 Wend., 564; Converse v. Kellogg, 7 Barb., 590; Rose v. Rose, 4 Abb. App. Dec., 108; Schettler v. Smith, 41 N. Y., 328.)
The. result is that in respect to the property mentioned in the sixteenth clause of the will, intestacy has happened, and such property has descended to the testator’s next of kin.
The share given to the testator’s daughter Julia, by the fifth clause of his will, upon her death intestate, sank into the residuum and descended to the testator’s next of kin.
We are of opinion, that this is not a proper action to determine the claim of the defendant Wisner to the share of the testator’s son Thomas. But assuming that it is, we think that the court below correctly decided, that the personal representatives of the testator are entitled to administration of his estate, and that the claim of Wisner, if a valid one, must be enforced by an appropriate proceeding against them in the course of that administration. Won constat it might in such a proceeding be shown, that other and prior equitable liens on fhe property of the testator’s son Thomas, are outstanding. We are sustained in this conclusion by adjudged cases. [Sylvester v. Reed, 3 Edw. Ch., 296; Mathews v. Neilson, Id., 346. See also High on Rec., § 716.) The remarks of Grover, J., in his dissenting opinion in Brown v. Nichols (42 N. Y., 42), have not the weight of authority.
The judgment should be modified in accordance with this opinion, and as so modified it should be affirmed, with costs to all the parties to this appeal, except the defendant Wisner, to be paid out of the fund.
Dykman, J., concurred; Barnard; P. J., not sitting.Judgment modified in accordance with opinion of Gilbert, J., and order to be settled by him, and modified, with costs out of fund to all parties except Wisner, receiver.