Opinion
May Term, 1896.
Delos McCurdy, for the appellants.
Edward B. Hill and George Douglas, for the plaintiffs, respondents.
E.A. Brewster, for the defendant, respondent.
The questions involved in this appeal are: (1) Did John C. Gwyer own a vested interest in remainder in one-sixth of the property disposed of under his father's will? (2) Is William E. Gwyer, either individually or as legatee or executor of the will of John C. Gwyer, entitled to receive the portion of the income which the latter, if living, would have been entitled to? and (3) If William E. Gwyer is entitled to take under the will of John C. Gwyer, does he take such vested estate in remainder charged with the payment of the mortgage?
In determining these questions resort may profitably be had to certain canons of construction which have received judicial sanction. The primary canon requires that the intention of the testator, as gathered from the entire will, shall control, and that in cases of doubt as to whether an estate was intended to vest or not, the law always favors the vesting. Another is that, unless a different intention is expressed, the children referred to in a will "are those living at the testator's death." ( Matter of Seebeck, 140 N.Y. 241.) This case and those of Goebel v. Wolf (113 id. 405) and Matter of Tienken (131 id. 391) are in principle, upon the questions here involved, controlling.
In the case of Goebel v. Wolf, where the question arose over the construction of a residuary clause, and where the language was susceptible of a construction that the gift there was future and contingent and not vested, because it was found in a direction to divide at a future time, nevertheless, following the rule that the intent of the testator should control, it was held that the gift was not to the children as a class, but that each child took a vested remainder in one-fourth of the residuary estate, depending upon the termination of the trust, and that the share of the one who died, with the accumulations of income therefrom, descended to his heirs or next of kin according to the nature of the property; also, that such descendants were entitled to any income which might thereafter accrue during the trust period.
It will be noticed in referring to the eighth article of the will here in question, that in making a disposition of the estate itself the language is, "And upon the death of my said wife, * * * I direct that all my estates shall be equally divided between my children whom I shall have left surviving me, share and share alike. And if any child or children of mine shall have died leaving lawful issue him or her surviving, said issue shall take among them collectively." The difference between the language thus used in disposing of the estate and that used in disposing of the income by the fourth article, consists in the fact that the latter clause of the eighth article, providing for the taking by issue in case of the death of any child, is not found in the fourth article. And it is upon this omission or circumstance that much of the argument of the appellants is built, and while conceding that, as to the estate itself, a vested remainder was created in favor of each child, which would go in the event of the death of any child to his or her issue, it is urged that the same cannot be said of the provision relating to the net income, the contention being that the testator intended to mark and emphasize a distinction between the net income and the disposition thereof, and the estate itself and the ultimate disposition thereof. We think, however, that the appellants give undue weight to the fact that the testator, when speaking of the disposition of the income, says nothing about the survivorship in case of the death of any child, while when he speaks of the corpus or estate itself he does provide for its ultimate disposition in case of the death of any of the children during the continuance of the trust estate. Speaking as the will does from the death of the testator, his intention is clearly expressed that it was his children then living who were to take the net income; and the question really turns upon whether they were to take it as a class or distributively. This we think must be resolved in favor of the latter view, because the surplus income above the one-third given to the widow is not given to the children as a class, but distributively. It is directed to be divided "equally between my children." No child is given any right in the shares of the others.
Construing this will, therefore, in the light of the authorities referred to, we think that John C. Gwyer took a vested estate in one-sixth of the income and also of the corpus of the property; and he having left no issue who would succeed to the corpus, and his interest, therefore, being divisible and alienable, his estate passed under his will to his brother William E. Gwyer, who, as to both the income and the corpus, occupies the same position, with the same rights and obligations as to such share, as John C. Gwyer had at the time of his death.
John C. Gwyer having mortgaged his vested estate in remainder, it is but just that such mortgage should be declared to be a valid lien thereon, and that William E. Gwyer, as legatee and devisee thereof, take such vested estate in remainder charged with the payment of the mortgage.
As we have thus reached the same conclusion arrived at by the learned trial judge, the judgment appealed from should be affirmed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Judgment affirmed, with costs.