Flanagan v. Staples

McLaughlin, J.:

Joseph. Staples died in 1888, leaving him surviving his widow .Deborah and four children, two sons, Joseph and Julius T.,. and two daughters, Josephine A. Esler and Emma M. Flanagan. He left a will and a' codicil thereto which, shortly after his death, were admitted to probate, and letters testamentary thereon issued. to the plaintiff, one of the executors therein named. The, subject-matter of this controversy relates to the construction to be given to a portion of the 4th clause, and which was not changed or -modified by the codicil. So much of this clause of the will as is material to the question presented, reads as follows : “ Upon the death of my said wife, I ,give, bequeath and devise all my said estate and' property unto my children in equal-shares or portions share and share alike absolutely and forever. In the event of the death of any of my children, leaving issue him or her surviving, such issue shall take the share- or portion of my said -estate and property which the parent would have taken if living.”

The son Joseph died in 1892, leaving him surviving four infant children. He also left a will in and by which he gave to- his sister Mrs. Esler and to his brother Julius the share or portion of his father’s.estate which he was entitled to take and receive under his father’s will. The widow Deborah died in. 189.6-. The sole question presented for our determination is whether the interest which Joseph would have taken in his father’s estate, had he been living at the time of Deborah’s death, nojv belongs to the. four infant children : under the will of their grandfather, or whether that interest passed Under the will of the son Joseph and now belongs to his brother Julius and his sister Mrs. Esler. The answer to this question, depends entirely upon whether this interest so far vested in Joseph, that he. could effectually dispose of it by will, and this must be ascertained, if it can be, by what the testator intended in that respect. Turning then to the will it will be found that the intent of the testator is perfectly clear on that subject and expressed in such a way that it cannot be misunderstood. The testator desired that his widow Deborah should have the use of his property during her life, and that at her death whatever remained, should be equally-divided among his four children, and if any of them should, prior to that time, die leaving issue, such issue was to be substituted in the place of the parent. The words selected to express this desire are “ upon the death of my said wife I give * ’* * . all my said estate and property unto my children in equal shares * * *. In the event of the death of -any of my children leaving issue * * * ■ such issue shall take the share or portion * * * . which the parent would have taken if living.”

The son Joseph immediately úpon the death of his father took a vested remainder in his father’s estate, the enjoyment of which, however, was postponed until the death of the life tenant and depended upon his surviving her; in other words,-he took an estate which immediately upon the death of the testator vested, but which by express provisions of the will was subject to be divested by the happening of a specified contingency, which was his death before the death of the life tenant. The contingency thus provided for occurred. The son Joseph died before the widow Deborah; he left . issue him surviving, and such issue, immediately upon the death of the widow Deborah, was substituted in and took the place of Joseph under the will of the testator. (Camp v. Cronkright, 59 Hun, 488.) The trial court, therefore, was right in holding that the interest which he would have taken in his father’s estate, had he survived his mother Deborah, is now lodged in and belongs to his four infant children.

The judgment should be affirmed, with costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.