Opinion
November 3, 1922.
Lawrence Atterbury [ Charles Green Smith of counsel], for the appellant.
Alfred Frankenthaler, special guardian for infant respondents Albert C. Bostwick and others.
Seacord, Ritchie Young [ Albert Ritchie of counsel], for the respondents New Rochelle Trust Company and Marie S. Gilbert, as general guardians, etc.
From a consideration of the whole will, it is not possible to find such evidence of testamentary intention as to compel a construction of the words of the above subdivision other than the construction that the words themselves import in said subdivision. ( Matter of Buechner, 226 N.Y. 440, 444.) The learned surrogate held that the devise was contingent. (117 Misc Rep. 750.) In this the learned surrogate was in error. The devise of the testator to his son, Albert, comes directly within the statutory definition of a vested remainder. (1 R.S. 723, §§ 11, 13; Id. 773, § 2; now Real Prop. Law, §§ 38, 40; Pers. Prop. Law, § 11.) In other words, upon Albert's attaining his majority, there was a person in being who would have an immediate right to the possession of the property on the termination of the precedent estate — the life estate in his mother. ( Lewis v. Howe, 174 N.Y. 340, 347.) The only words upon which a contention that futurity is annexed to the substance of the gift could possibly be hung are the words "upon the death." These words do not imply as much futurity as the words "after the decease" and the latter have been expressly held not to prevent a vesting. ( Matter of Ossman v. Von Roemer, 221 N.Y. 381.) Passing these words "upon the death," we next find that there is a specific direction to pay over upon the son's reaching twenty-one years of age. In Brooklyn Trust Co. v. Phillips ( 134 App. Div. 697; affd., 201 N.Y. 561) the court found words of survivorship which made the ultimate beneficiary uncertain, and this, together with other expressions of futurity, clearly brought that case within the doctrine of futurity being annexed to the substance of the gift, and distinguished the case from the case at bar. Albert lived the stipulated time and his "right was then perfect. Only the outstanding trust for the widow has postponed its enjoyment." ( Matter of Ossman v. Von Roemer, supra.) The physical delivery or non-delivery of the property did not affect the rights in the same.
The decree of the surrogate should be modified so as to contain a direction of the conveyance by the trustee of the fund in question as follows: One-fifth of two-thirds to each of the four children born after the making of the will of Albert C. Bostwick, and the remainder to the appellant Marie S. Gilbert, and as so modified affirmed, with costs to appellant payable out of the fund.
CLARKE, P.J., SMITH, MERRELL and GREENBAUM, JJ., concur.
Decree modified as stated in opinion, and as so modified affirmed, with costs to appellant payable out of the fund. Settle order on notice.