Opinion
October Term, 1899.
Allison Butts and John Hackett, for the appellants.
Fred. E. Ackerman, for the respondents.
This action is to obtain a judicial construction of the will of Thomas Aldridge, deceased. The question presented on this appeal arises under the 3d and 4th clauses of the will, and is whether under those clauses the remainder to a child of the testator is subject to be divested by the death of the child before the time of distribution. By the preceding clauses of the will the testator directed his executors to convert all his real and personal property, with the exception of his brickyard, into money, and to divide the proceeds, after the payment of his debts, among his eight named children "equally, share and share alike, the child or children of any deceased child to take its parent's share." By the 3d clause the testator gave his brickyard property to his executors in trust during the life of his widow, to receive the rents and income, and out of the same to pay the widow an annuity of $1,000; the surplus, if any, to be divided between his said children "heretofore particularly named, equally, share and share alike, the child or children of any deceased child to receive its parent's share." By the 4th clause he directed his executors, upon the death of his widow, to sell the brickyard property and "to divide the proceeds arising from said sale, together with all money or moneys belonging to my said estate, equally among all my heretofore named children, share and share alike, the child or children of any deceased child to take its parent's share."
The general rule is, as claimed by the learned counsel for the appellants, that where there is no present gift, but a mere direction to divide at a future time a fund then to come into existence, futurity is of the substance of the gift, and the legatee to take the legacy must survive the time of distribution. ( Warner v. Durant, 76 N.Y. 133; Delafield v. Shipman, 103 id. 463; Matter of Baer, 147 id. 348; Matter of Brown, 154 id. 313.) The rule, however, has many exceptions. ( Goebel v. Wolf, 113 N.Y. 405; Matter of Tienken, 131 id. 391; Matter of Young, 145 id. 535; Shangle v. Hallock, 6 App. Div. 55.) In the present case the only gift of the brickyard property is the direction to the executors to divide its proceeds upon the death of the widow. If this direction stood alone, the case would fall within the general rule; but the direction is to divide the proceeds of the brickyard property, "together with all money or moneys belonging to my said estate." It is conceded by the counsel for the appellants, and could not well be questioned, that the estate other than the brickyard vested in the testator's children living at his death, not subject to be divested in any contingency whatever, the substitution of children for their parents referring only to the case of death during the life of the testator. The direction to divide in the 4th clause of the will evidently contemplated that the distribution of the proceeds of the brickyard property should be among the same persons as those among whom the remainder of the estate was to be divided, and in the same shares. This, in our opinion, takes the case without the general rule, and we hold that the shares of those children of the testator living at the time of his death, but who died prior to the decease of the widow, were not divested by such death, but passed to their personal representatives.
The judgment of the Special Term should be affirmed, with costs to all parties to be paid out of the estate.
All concurred.
Judgment affirmed, with costs to all parties to be paid out of the estate.