#### Victor Levi and Ernest A. G. Intemann, as Only Acting Executors and Trustees, etc., of Jacob Gottgen, Deceased, Respondents, *v.*Justine G. Scheel and Louise Ammann, Appellants, Impleaded with George G. Scheel and Others, Defendants, and Henry F. Strodtmann, Respondent.

First Department,

March 6, 1908.

Will construed — testamentary trust of undivided estate^ with power of appointment — when trust not terminated by death of beneficiary — possession of appointee postponed until termination of trust.

Where a will devises the residuary estate in trust, income to be paid to the testator’s three children for twenty years from the death of the testator, or until the death of two daughters named, whichever event shall first happen, the corpus to be transferred to the daughters on the termination of the trust, *614with a further proviso that “in the event of the death of any of my said . . daughters before the expiration or termination of the trust,” her share to go to her issue if living, or if there be no issue, then to such person as she shall appoint by will,- the will should bo construed to mean that the testator did not intend that the death of a daughter should destroy, modify or qualify the trust created, but-that, on the contrary, the intention -was, in case of such death, to place the issue, or in default thereof the appointee, in the same position with respect to the trust as the deceased daughter previously occupied.

•Hence, when prior to the termination of the trust, a daughter died without issue, devising to her husband all her interest under said residuary clause, the husband became vested with the interest of his wife, subject, however, to the continuance of the trust, so that he was not entitled to possession until the termination thereof.

Such construction does not- make the will invalid on the theory that the income • of one-third of the trust estate is undisposed of, for as the husband took the same interest which his wife would have taken had she lived, the income under the statute goes to him as the owner of the next eventual estate.

Appeal by the defendants, Jnstine G. Scheel and Louise Ammann, from a judgment of the Supreme Court in favor of the plaintiffs and the, defendant Henry F. Strodtmann, entered in the office of the clerk of the county, of New York on the 2d day of Hovember, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

*William II. Sage,*for the appellant Louise Ammann.

*Frederick F. Mygatt,*for the appellant Justine, G. Scheel.

*Theodosius F. Stevens,*for the respondent Henry F. Strodtmann.

*W. II. Yan Benschoten,*for .the plaintiffs. .

McLaughlin, J.:

On the 2d of -May, 1898, Jacob Gottgen died, leaving him surviving three daughters, Justine G. Scheel, Louise Ammann and Clara Strodtmann. At the time of Ms death he was seized of five parcels of real estate in the city of Hew York. He left. a will by which he gave to each daughter, under certain conditions, one of these parcels and the other two he disposed of by the reside nary clause. The daughter Clara lias-since died, leaving her surviving her husband, Henry F. Strodtmann, the respondent.above named.. She left a will, by which she gave to him all the interest which she had under the residuary clause of her father’s will. The *615husband claims that immediately upon the death of his wife he became seized in fee simple absolute and entitled to the immediate possession of an equal undivided third of the residuary estate of Mr. Grottgen. The two surviving daughters dispute this claim and insist that under a proper construction of their father’s will the respondent is not entitled to the possession of such undivided third until the trust created thereby has terminated. For the purpose of settling the dispute which has thus arisen, this action was brought. The trial court held that the will created three separate trusts, one for the benefit of each daughter, but for the convenience of administration and investment the property disposed of was directed to be kept *in solido*and that, therefore, the respondent Strodtmann, upon the death of his wife, became seized in fee simple absolute of an equal undivided one-third of the residuary estate — entitled to the immediate possession thereof—-and directed the executors to sell the real estate included in' the residuary estate and pay to him, after deducting the costs of the action and expenses of sale, one-third of the net proceeds. Judgment was entered to this effect, from which the two daughters appeal.

The appeal presents but a single question, *i. e.,*whether the learned justice sitting'at Special Term correctly construed the residuary clause of the will of the testator and the item immediately following. The residuary clause reads as follows: “All the rest,' residue and remainder of my estate, real and personal, of every nature and kind whatsoever, including any lapsed devises or legacies, I give, devise and bequeath to my executors and the survivor of them and their successors, in trust for the following uses and purposes:

*“*a. Until the expiration of the term of twenty years after my decease, or until the death of my daughters Louisa* Ammann and Justine Scheel, whichever- event shall first happen, to invest the proceeds of the personal property and of any real estate which they may sell under the authority hereinafter conferred, and to rent and lease the real estate for terms not exceeding ten years.

“b. To collect and receive the interest, rents, issues and profits from my said residuary estate so devised' to them and after paying *616and deducting all lawful charges, commissions, and expenses to pay. and apply the net income in equal proportions to the use of my said three daughters, Justine Scheei, Louisa Ammann and Clara Strodtmann..

“ c. On the expiration of said term of twenty years, or upon the death of the survivor of my said two daughters, Louisa Ammann and Justine Scheei, which* event shall first happen, to convey, assign and transfer said residuary estate devised to my executors as aforesaid to my said three daughters Justine Scheei, Louisa Ammann and Clara Strodtmann in equal shares and proportions, to whom I give, devise and bequeath the same.”

What the testator intended by this clause of liis-will is apparent. He desired his residuary estate to be held in trust for a term of twenty years, or during the joint lives of his daughters Justine and . Louise, and the in come therefrom to be collected by the trustees named during this period and divided in equal proportions among his three daughters, and at the expiration of twenty years, or upon the. death of the survivor of the two daughters Justine and Louise, lie desired that the residuary estate should go to the three daughters, or their representatives, in equal proportions. Had the will stopped here there could not, by'any possibility, have been any question as to what he desired to accomplish. The apparent difficulty is in reconciling this clause with the itém which immediately follows it, and which reads:

“ *Item.*In the event, of the death of any of my said daughters before the expiration or termination of the trust as hereinafter provided, leaving issue her surviving, I give, devise and bequeath to the children of each of the daughters so dying an equal -undivided third of iriy said residuary estate, the issue of any deceased child taking the share which the parent would have taken if living at the death of said daughter, and in case any of my said daughters shall die before, the termination of said trust, .without leaving issue her surviving, then I give, devise and bequeath one-third of said resid.uary estate to such person or persons and in such, shares and proportions as such, daughter shall by her last will and testament devise and appoint.”

When this item is read in connection with the residuary clause, it *617seems to me clear that the testator did not intend that the death of any one daughter should destroy, modify or qualify the trust created in the residuary clause. lie says iii this item : “ In the event of the death of any of my said daughters before the expiration or termination of the trust” — words quite significant because they indicate tiiat the trust referred to was not to terminate, but to continue, notwithstanding the death of a daughter; otherwise the death of a daughter could not be before the termination of the trust. If the death of a daughter terminated the trust, then the death and termination would be simultaneous. What the testator intended to accomplish by this item, as it seems to me, was, in case of the death of a daughter, to place her issue-— or, if she did not have issue, such person as she might appoint by her last will and testament—-in precisely the same position that such child had previously occupied with reference to the residuary estate. *(Matter of Moloughney,*67 App. Div. 148.) Observe the language: “The issue of any deceased child taking the share which the parent would have taken if living at the death of said daughter.” What is the share referred to? Hot an equal undivided one-third of the residuary estate in immediate and absolute possession —the mother was not entitled to that — but a vested interest in one-third, subject to the trust created in the residuary clause, to vest in absolute possession at the termination- of the trust therein created, which "was at the expiration of twenty years or the death of the two daughters Justine and Louise, whichever event might happen first.. And in default of issue, then the same interest was to pass to such'person or persons and in such* shares and proportions as the daughter might, by her- last will and testament, designate.

It is true that in default of issue slightly different words are used, but when the whole item is read together, it seems to me the testator intended that the issue — or in default of issue, the person appointed — should be treated the same — either to be substituted for and take the place of the daughter.

This view is strengthened when other portions of the will are considered. The testator had, as we have already seen, five pieces of real estate. He gave each child one parcel, but the absolute power of alienation in each case was suspended for a period of ten years, unless the daughter to whom the parcel was given should die before *618that time, indicating that he had in mind as to- these parcels separate trusts for each child, but as to the remaining two parcels he desired they should be kept together until the time mentioned had expired, or the event referred to had happened.

The authorities cited by the respondents are not in point. In those cases, or nearly all of them, it was held that separate trusts were created for the purpose of saving the trust- in the will and not destroying it. Here, fo'hold that separate trusts were created, one for the benefit of each child, is to destroy the manifest purpose of the testator, which was to keep the property tied up at least for twenty years,.or during the lives of his two daughters Justine, and Louise. '

Hor is there force in the suggestion that this construction would be invalid because the income of one-third of the trust estate is undisposed of. The respondent Strodt'mann takes the interest m the trust estate which his wife would have taken had she lived. ' It. isa gift in remainder of one undivided third of the residuary estate, subject to the precedent trust estate which suspends the power of alienation during the trust term. Hence the income of such one-third goes, under the statute, to him as owner of the next eventual estate. (See Real Prop. Law [Laws of 1806, chap. 547], § 53.)

My conclusion, therefore, is that the property- passing under the residuary clause of this will is to be held in trust for a period of twenty years, or during the lives of the two daughters Justine and Louise; that the respondent Strodtmann takes the interest in such •trust estate which his wife would have taken had - she lived ; that the title to her interest vests in him, but he is not entitled to the possession until the termination of the trust. ' .

The-judgment appealed from, therefore, should be reversed and a new trial ordered, with costs- to all parties separately appearing payable out of the estate.

Patterson, P. J., Laughlin, Houghton and. Scott, JJ.., concurred.

Judgment reversed, new trial ordered, costs to’ all parties separately appearing payable out of the estate.

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 Louise,

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*Sic.*