The fifth clause of the will could not have been framed so as to pass the proceeds of the real estate to the next of kin of the testator, who was such at testator’s death. That would pass the estate to the testator’s son, James, who was .then the sole next of kin. I agree with the appellants that such is not the true construction of the will. James was given a life estate in the real estate in ques*576tion, with, a devise absolute if he should “have lawful issue.” It is only in ease of the death of James without “having had any lawful issue ” that the executors were directed to sell the land and distribute it as personal estate. Certainly the testator did not intend to give the whole remainder of the estate to James, as vested at the testator's death, and the time of the full possession postponed until after James Walsh’s own death. The appellants claim the true intention of the testator to be drawn from this clause is that the will speaks of the testator’s next of kin at his own death, excluding James. A great many authorities are cited showing that under words similiar to those in the fifth clause a legacy vested at the death of testator. The question is an exceedingly troublesome one, and the decisions upon the subject of when vesting takes place are many and not easily reconciled. In this case I think the will intends to name only those of the next of .kin of the testator as were living at the death of the son James. There is no illegal trust made in the land. James had a life estate subject to an annuity to his mother. This life estate might become a fee in the lifetime of James. It was land, therefore, until James died, with a direction to turn the same then into personal property in case the life estate had not become a fee. The phrase “ among my next of kin ” means the next of kin existing at the time of the creation of the fund, which was then for the first time in a condition to pass to next of kin. If this is the correct conclusion, then it is clear that the court had power to execute the power of sale provided for in the will. The executors who had the power were dead. The execution of the power devolved upon a court of equity. It is never permitted that a valid trust shall fail of execution for the want of a trustee.
The judgment should be affirmed, with costs.
Dykman and Cullen, JJ., concurred.Judgment affirmed, with costs.