I concur in the reversal of the order of the Appellate Division for the reasons stated in my dissenting opinion in Dickerson v.Sheehy (209 N.Y. 592). If the decision in that case were to be followed I should be constrained to vote for affirmance of the order. The opinion of my brethren in this case, proceeds on the rule that a gift of income tends to vest in the beneficiary the capital of which the income is given, a rule well recognized by the text-writers (Jarman on Wills, p. 802), and relied on by me in the Dickerson case. No opinion was written by the majority of this court in that case, but the decision of the Appellate Division (156 App. Div. 101) proceeded on the theory that the rule was inapplicable because in that case the principal of the fund was not severed from the general estate, but the bequest was only of a part of the aggregate income of the whole residuary estate, and I assume that the decision of this court proceeded on the same ground.
In the respect referred to the difference, such as it is, between the provisions of the wills in the two cases tends far more strongly to support the theory of a vested interest in the earlier case than in this. In the Dickerson case the direction was to apply two-fifths of the rents to the testator's widow during life, and one-half of the remaining three-fifths to the testator's son Edward (the one who had died and whose share was in controversy) until he attained the age of twenty-five years, and then to pay over to him three-tenths of the residuary estate, the share of that residuary, the income of which was given to him. In the present case likewise the residuary estate is givenin solido in trust to pay over out of the net income to the testator's widow the sum of $20,000 annually, and divide the remainder thereof among the testator's children and the issue of deceased children equally, and upon the death of the widow, then to divide the residuary estate into shares. The present case falls far short of the Dickerson case, so *Page 32 far as the rule of vesting by reason of a gift of the income of a share. There is no share to be set apart to the children of the testator until the death of the widow, while as to the intermediate income there is no gift of the income until after the death of the widow either upon any particular fund or upon any particular portion of a greater fund. If the income of the residuary estate in any year should fall short of $20,000, the children of the testator would not receive a penny during that year, and under the best of circumstances the income payable to each child would vary from year to year according as the income might vary. How then is it possible to say that the income on any particular fund or share of a fund was given to the deceased child? While in the Dickerson case, let the income in any year be big or little, the two sons were always entitled to receive each three-tenths, and the practical result was exactly the same as if the testator had directed his trustees to hold three-tenths of the estate in trust to apply the income to the benefit of the son. The conclusion of my learned brother that the share of the deceased child, Edmund Bailey, vested, as I understand it, rests on the provision relative to the gift in his favor of the sum of $20,000. But here, as in respect to the main share, until the death of the widow he is given, not that sum of $20,000, but only the income that the sum may earn, and the sum is not added to his share until the death of the widow, when his share first comes into existence. (See 9th clause of the will.) Assuming, however, that the gift of $20,000 was vested, I am at a loss to perceive just how that tends to prove that the testator intended his other gift made in entirely different language to be vested, and still less how it would tend to vest the share of the other son who might have died, the same as Edmund, under the age of thirty years.
In my judgment, the decision we are about to make can be safely rested on one ground alone, and that is the one stated by Judge ANDREWS in Goebel v. Wolf *Page 33 (113 N.Y. 405, 415): "This construction (i.e., that the gift was vested) also prevents the disinheritance of issue of any child who may marry and die before the expiration of the trust period, a consequence which no one can doubt the testator never intended." Indeed, to see how far this court will go in holding a legacy vested rather than disinherit remaindermen who may die before the termination of the precedent estate, I refer toConnelly v. O'Brien (166 N.Y. 406). That rule necessarily would have led to a reversal in the Dickerson case. So also the rule cited in the majority opinion in this case — that the law favors the vesting of remainders — was equally applicable to theDickerson case.
If, however, I err in underestimating the force to be attributed to the $20,000 gift to Edmund Bailey in the construction of the principal testamentary provision in his favor, still this much must be conceded, that no counsel, however eminent, could have asserted with any degree of confidence, on that ground alone, that this case would be decided as we are now deciding it. The result of the rule as to the construction of a gift, confined to a mere direction to divide and pay over, has been productive of more litigation than any other rule as to the construction of wills. That nearly all laymen and very many lawyers are wholly ignorant of it, there can be no question. Despite of that fact, if it had become a rule of property, it should be respected whether good or bad, but instead of being a rule of property, it is a rule which unsettles title to property, and the condition of the decisions is such that in almost every case counsel is justified in insisting, if not actually required to insist, that his client shall obtain the decision of the court of last resort on the question. It may very well be that the rule has obtained so long that entire relief from it cannot be obtained except by legislative action. Still, it seems to me the plain duty of the courts to limit it as far as practicable, and the doctrine formulated by Judge ANDREWS *Page 34 would at least relieve the application of the rule from very much of its present uncertainty, and save the public and the clients from litigation, as well as avoid the disinheritance of the issue of testators.
GRAY, HISCOCK, COLLIN and MILLER, JJ., concur with CHASE, J.; WILLARD BARTLETT, J., concurs with CULLEN, Ch. J.
Ordered accordingly.