Opinion
December Term, 1897.
W.R. Spooner for the appellants.
William H. Reed, for the plaintiffs, respondents.
Benjamin N. Cardozo, for the respondent Wilhelmina Bunce and the guardian ad litem of Beulah Bunce.
James T. McMahon, for the executors of Nathaniel R. Bunce, deceased, respondents.
We think the learned judge at Special Term erred in treating this case as though a legal life estate had been created in the two daughters of Cynthia A. Bunce, with a vested remainder to their children, and with a contingent remainder to the other individuals specified. Instead of this, the whole title was vested in the trustee during the joint lives of Elizabeth M. Bunce and Sara F. Bunce, and the life of the survivor. After the death of the survivor he is directed to sell the land and divide the proceeds equally between the then living children of these life beneficiaries and the issue of such of said children as may have died before the death of the survivor leaving issue. In case of the decease of both of the life beneficiaries, without leaving issue surviving the survivor of them, which proved to be the fact, then the trustee was directed to pay and divide the proceeds equally between Nathaniel R. Bunce, Augusta L. Romer, William F. Geisse and the children of Chauncey D. Bunce.
There is no direct gift to these latter individuals, and it is well settled that, where the only gift or devise of property is contained in the implication resulting from a direction to pay or divide at a future time, futurity is annexed to the substance of the gift, and no title or interest vests until the arrival of the specified period. This doctrine plainly applies here to each of the three individuals named in the direction to pay and divide. It applies with additional force to the one-quarter payable to the children of Chauncey D. Bunce, for there another rule reinforces the first, namely, that where the direction is to pay to and divide among a class, only those persons who are members of the class at the date fixed for distribution take, and their interests do not vest until that period. Ample authority for both rules will be found in the following cases: Delaney v. McCormack ( 88 N.Y. 174); Delafield v. Shipman (103 id. 463); Matter of Baer (147 id. 348). In order that the interest of the beneficiary may vest at once there must be, in addition to the direction to the trustee, either express words of gift, or circumstances from which may fairly be inferred an intention to appropriate at once the subject of the gift to the use of the beneficiary, although the full enjoyment thereof is postponed to a later date. ( Warner v. Durant, 76 N.Y. 133; Goebel v. Wolf, 113 id. 405; Matter of Tienken, 131 id. 391.) There are absolutely no circumstances here making the general rule inapplicable, and bringing the exception into play. There are, on the contrary, two circumstances which make the general rule apply with particular force. At the time of the execution of the trust deeds the property was not even in existence in the form in which it was ultimately to reach the beneficiaries, and during the whole continuance of the trust a contingency existed which rendered it uncertain whether they would ever take at all. The first circumstance was alluded to in Vincent v. Newhouse ( 83 N.Y. 511), and particular force was attributed to the latter in Delaney v. McCormack ( 88 N.Y. 183). If the rule were not applied here it might well be thought to have no substantial existence at all.
It follows that no interest in the proceeds derivable from the sale of the trust property vested until the death of Sara F. Bunce. As Mrs. Romer and Mr. Geisse predeceased her, their shares in these proceeds lapsed, and passed under the residuary clause in the will of Cynthia A. Bunce, to Elizabeth M. Bunce and Sara F. Bunce. The plaintiffs Bella Geisse and Nellie Geisse are entitled to one of such shares (one-half to each) as the residuary legatees of Sara F. Bunce, and the appellant George W. Bunce to the other share as residuary legatee of Elizabeth M. Bunce. Of the remaining two shares of the proceeds to be derived from the sale of the trust property, one goes to the executors of Nathaniel R. Bunce, who, being alive at the time of the death of Sara F. Bunce, took under the provisions in the trust deeds, and the other to George W. Bunce as the sole child of Chauncey D. Bunce who survived the trust term.
The other provisions of the judgment seem to have been entirely proper, and to have met with the approval of all parties.
The judgment appealed from should be modified as indicated, and as so modified affirmed, with costs to all parties who filed briefs in this court to be paid out of the fund.
VAN BRUNT, P.J., RUMSEY, O'BRIEN and INGRAHAM, JJ., concurred.
Judgment modified as directed in the opinion, and as so modified affirmed, with costs to all parties who filed briefs in this court to be paid out of the fund.