#### John Cogan et al., as Executors and Trustees, etc., of Henry Cogan, Plaintiffs, *v.*Annie E. McCabe et al., Defendants.

(Supreme Court, New York Special Term,

June, 1898.)

Contingent remainders —“ Lawful heirs *”*— Trust — Suspension of power of alienation — Limitation of a trust upon the life of a child unborn — Substitution of a second wife and her children — Disposition of rental and fee damages as between life tenant and remaindermen — Testamentary release to trustees — Parties.

A will devised the real estate of a testator to trustees for the benefit of his wife for life and, after her death, directed a sale by the trustees and the “ net proceeds of said sale to divide into four equal parts or shares ”, and further directed them “ to pay ” these to his three children or those who represented their stocks, while, in the case of the fourth share given to his son Henry, the testator directed ft to be held in trust solely for Henry’s wife and children “ until his youngest child' shall have attained the age of twenty-one years,” when the share was to be equally divided among the children of Henry.

Held, that the remainders thus limited were contingent, that they did not vest until the death of the testator’s wife and were then distributable to those members of the different classes who were then in existence. In the case of a son named James, who died unmarried and without issue before the testator, the will directed that, in case of the death of James before his mother, his share should pass “ to his lawful heirs.” Held, that as the gift was only of the proceeds of sale, “ his lawful heirs ” were those of his kindred or blood who took by the Statute of Distributions.

It appeared that, when the will was made, the son Henry was married and had one child; that both his wife and child died before the testator; that Henry married again; that his second wife was with child when the testator died; that Henry had two other children before the testator’s widow died and that he had still another child, born a year after her death. Held, that the children of the second wife of Henry were entitled to take and that the second wife was entitled to her support from the income of the trust.

That the phrase “ until his {Henry’s) youngest child shall have attained the age of twenty-one years ” must be taken to mean, until the youngest child of Henry, living at the. time, of the testator’s death, had attained that age.

*740That the true construction of the entire limitation was that it was dependent only upon the life of the testator’s widow and the minority of that child, of Henry, who was- conceived before but born after the testator’s death; that, after the widow’s use during lTfe and after her death, the trust was limited for the use of Henry’s second wife and her children, born or to be born during, the existence of the trust, with remainder to such children, provided always that they were ■ in-existence when, the trust terminated by the child of Henry, born a few months after the testator’s death, reaching majority, of by the death of that child during minority.

Rental damages caused to abutting property by • elevated railroads' pass, so far as they accrued before the. death of a life beneficiary, to her personal representatives, but those accruing after her death, and any damages to the fee, go-to the remaindermen.

A provision in the will of a life beneficiary, reciting that as she herself has collected the rents of the trust estate, she releases the trustees from liability for rents not collected, does not release them from liability for rental damages, caused by elevated railroads, which neither she nor they collected.

Where the personal representatives of a life beneficiary are necessary to a final determination of an action brought by, trustees, "they must be brought in and the trial must stand adjourned until they have had, an opportunity to plead.

Action for the construction of a will.

R. Dudensing, for plaintiffs.

James A. Dunn, Holt *&*Gaillard, John Widdecombe and Geo. W. Stake, for defendants.

Cohen, J.

This action is brought by the-trustees tinder the will of Henry Cogan to obtain a settlement of their account of their proceedings to date, and the judicial construction of the will now made necessary by the death of "the testator’s widow, and the partial distribution of the estate directed to be made upon the occurrence of that event.

By his will the testator, a-ft.er bequeathing to his widow his *“*furniture, books and all other personal property,” devised all his real estate, being three lots at the Southwesterly comer of First avenue and East Eleventh street, in the -city of Hew. York, to his executors *741in trust to collect the rents and profits thereof, and after paying all charges for interest, taxes and insurance, to pay the net income to Ms Avife during her life; and after her decease to sell the said real estate and *“*the net proceeds of said sale to divide into four equal parts or shares.

“3. To pay one share or fourth part * * * to my son James Oogan; or in the event of his death before my said Avife, to his lawful heirs.

*“*4. To pay one share or fourth part * * * to my daughter Catherine, Avife of Patrick McOabe; or, in the event of her death before my wife’s death, to her smwiving children, to be divided equally between the said children.

*“5.*To pay one share or fourth part •* * * • to the surviving children of my deceased daughter Mary Ann, who was the Avife of Cornelius Bums, to be divided equally between said children.

“6. To invest the remaining share or fourth part of Said net proceeds of said sale and to apply and pay the net income thereof towards the support and maintenance of the Avife and children of my son Henry Oogan, free from his control or interference, until his youngest cMld shall have attained the age of twenty-one years, when the said one-fourth part is to be divided equally between the children of said Henry.”

The general scheme of ihis will is clear and consistent. During the widow’s life the testator’s real estate is to be kept intact, and the rents applied to her support. Hpon her death it is to be sold, the proceeds to be divided into as many shares as the testator had had children; and these cMldren, or the persons then representing their stock, are each to receive one share, except that the son Henry was, for some reason satisfactory to the testator, set aside as the representative of his stock, and his Avife and cMldren designated as such in Ms .stead; and the trust as to their share continued until all should be old enough to be properly intrusted vñth the control-of their property.

To this general intention of the testator, perfectly apparent on the face of the will and a wholly competent exercise of Ms testamentary powers under our statute, it is the duty of the comt now, if possible, to, give effect. Though in any of the minor features of the scheme the testator’s intentions appear in doubt or even upon the surface to be such as the law does not sanction, yet, if Avithout violence to his language a construction can be put upon it which *742will keep him -within the limits of the law and at -the same -time execute his " will ” as he has declared it, that construction the court ■ must adopt. The testator is presumed to have known the law, and presumed to have intended to respect it; and this latter presumption will yield only to plain evidence of the contrary in the words he has adopted. Butler v. Butler, 3 Barb. Ch. 304; Dubois v. Ray, 35 N. Y. 162; Roe v. Vingut, 117 id. 204.

When the will was executed on July 30, 1883, the testator’s wife, and their sons James and Henry, and their daughter- Catherine McCabe, were living. Another daughter, Mary Ann Burns,' had died, leaving three children, Catherine Irene, Harry Joseph and Ellen Veronica. The son James was childless and unmarried. Henry was married to one Margaret Costello, and there was living' one child of this marriage, Annie Gogan.

The testator died January 4, 1886. In the meantime his son Henry’s, wife and child had died; and a second wife, Georgina, was already some five months with child by him. This child, the defendant Eleanor T: Gogan," was bom on the May 13th, following.-

The testator’s widow died March 10, 1895. By that time the son-James .had'died, still childless and unmarried; the-daughter-Catherine McCabe had died, leaving" four'- children, the defendants Annie E.-, Nellie G., Julia A. and Henry McCabe; and'to Henry Gogan' and Ms wife had been" born, besides Eleanor T., the deféndants.Irene E. and Edward'Cogan. They,'have now still another child; - the defendant Henry De Witt Cogan, born smce the death of testator’s widow. ' , • '!

■ The first question to be determined is whether the remainders limited to the different defendants upon the life estate of testator’s" widow aré vested or contingent. Recogmzing to the full the disposition of our courts, of wMch the case of Hersee v. Simpson, 154 N. Y. 496, is the most recent illustration wMch has come to, my' notice, to - consider no remainder a' contingent one, "where, con- " sistently with the intention of the testator, it may be construed as-being vested,” it is nevertheless clear that these'remainders cannot be so construed. There is no gift to any of these remaindermen;' only a direction to pay or divide certain sums to and among them,; •" after the decease- of my said wife.” At the death of the testator, and for some, time afterwards at least, it was wholly uncertain whether the *“*heirs ” of James Cogan; or the cMldren of CatherineMcCabe,' would ever take at all; Until the death of the widow " the *743property was not even in existence in the form in which it was to reach the beneficiaries.” To repeat the quotation of the Court of Appeals in Vincent v. Newhouse, 83 N. Y. 505, “ we may say here, as was said by the Master of the Rolls in Hoghton v. Whitgreave, 1 Jac. *&*W. Ch. Rep. 146, *‘*not only was there no bequest before the widow’s death, but the subject-matter did not then exist in the shape and form in which it is given; ’ ” and, it may be added, changing to the language of the Appellate Division in Geisse v. Bunce, 23 App. Div. 289, “if the rule [above referred to, for distinguishing a contingent from a vested remainder] were not applied here, it might well he thought to have no substantial existence at all.”

In support of the contention of the defendant Henry Cogan for a contrary construction, reference is made by him only to the case of McGillis v. McGillis, 11 App. Div. 359. It is noteworthy that upon the appeal to the Court of Appeals in that case," that court held that “ upon a proper construction of the will, the remainder was contingent and not vested.” McGillis v. McGillis, 154 N. Y. 532, 543.

. "While these considerations perhaps apply yith especial force to the remainders created in the two shares of the heirs of James Cogan and the children of Catherine McCabe, the difference in the wording of the limitations of the remaining two shares is not sufficient to permit of a different construction of them. It is clear, therefore, that no interest vested in any of the remaindermen until the death of the widow, as of which time the conversion of the real estate and the direction to divide its proceeds took effect; believing that this construction not only follows the rules of law applicable to the language employed, but is the one best adapted to carry out the actual intentions of the testator. It follows that under these remainders only those members of the different classes take who were in existence at the prescribed time of distribution. Tucker v. Bishop, 16 N. Y. 402; Teed v. Morton, 60 id. 502; Stevenson v. Lesley, 70 id. 512; Kilpatrick v. Barron, 125 id. 751.

The gift being only of the proceeds of real estate when sold, by the words the “ lawful heirs ” of James Cogan the testator must be held to have intended *“*those of" his kindred or blood who took by the Statute of D.istributions.” Tillman v. Davis, 95 N. Y. 17; Woodward v. James, 115 id. 346; Lawton v. Corlies, 127 id. 100. The gift talcing effect "only on .the death of the mother, the share of this son James Cogan is payable, therefore, one-third in equal shares to *744and among the four children of his sister Catharine McCabe, defendants in this action, one-third in equal shares to and among the •three children of his sister Mary Ann Burns, defendants in this action, and the remaining one-third to the defendant Henry O'ogan. The shares of the daughters, Catherine. McCabe and Mary Ann Burns, are payable in equal shares to' and among their several children respectively.

It is with reference to the disposition of the remaining share, set apart for the benefit of the, wife and children of the son Henry Oogan, that the chief question in the action arises. •

It is urged by certain of the parties who would benefit by such •a construction, that as the wife and child of Henry Oogan, who were in existence at the time the will was executed, both diéd in the' ..lifetime of the testator, this bequest lapsed *in toto,.*and that for this reason as to this one-fourth share the testator died intestate. On the part of other defendants it is urged that the limitations of this share súspend its alienation, not only for the life of the widow, but for another life not in being at the death of the testator, viz., that of the youngest child of Henry Oogan, who might not be, and in fact was not, born of begotten until long afterwards; and that the same result follows as before. The counsel for the trustees, on the other hand, endeavors to save the gift by the theory that, as the testator should be held to have intended by “ youngest child,” “ youngest child living at my death,” and as there was none then living, the limitation was in fact,.but for the single life of the testator’s widow, upon whose death the share vested in the three children then living of Henry Oogan, to the exclusion of the fourth child, Henry De Witt Oogan, not bom until a year afterwards, as well as of all possible future children. ; -

Bearing in mind the cardinal principles before reverted to, that the testator is presumed to have known the law, and that an intention to make an illegal limitation is not to be imputed to him unless his language on the point be so unambiguous as to compel the court, however reluctantly, to recognize it as such and deal with it accord' ingly, there seems no great obstacle in the way of giving practically complete effect to the benevolent intentions of the testator towards the children of his son Henry and their mother. Whatever embarrassment, under the earlier cases and text-books, might be found in the way of holding the second wife of the son Henry to have been substituted, by the force of her marriage, as' a legatee under the testator’s will in the place of the first wife, living at the time of its *745execution, were that the bare question presented I am largely relieved from, by express evidence in tins will of the testator’s general intention on the subject. By providing not merely for the “ child ” • of his son Henry in being at the date of the will, but for “ the children ” the son might have in time to come, the testator affirms his intention to embrace them all in Ms -benevolence; and those bom of the second wife come no less literally under the limitation than would the daughter of the first wife, had she not so speedily followed her mother to the grave. The children of the second wife bemg then, in my oprnion, undoubtedly entitled to take, their takmg seems inevitably to involve the sharing of their mother also in the testator’s provision for the support of the family during their minority. For it is only for that period and wMle acting, as it were, as nurse for her infant brood that the testator includes her in Ms bounty, recognizmg that during that period her presence and cooperation Avould be essential to the attainment of his object with regard to the infant children. - In other words, the testator’s Mtention in proAdding “ for the support and mamtenance of the Avife and children of my son Henry Oogan ” would have been equally well expressed by the pMase “for the support and mamtenance of the children of my son Henry, including the support and maintenance of their mother so long as she shall maintain a home for them during the miuority of the youngest of them.”

To such a limitation, however, the objection is made that it involves a suspension of alienation during the life of the vsddow, and also the lives of several cMldren not all of whom were even in being 'at the testator’s death. But if, m the absence of evidence elsewhere of a contrary intention, we are at liberty to understand by the phrase “ until his youngest cMld shall have attamed the age of twenty-one years,” “ until his youngest child *living at the time of my death*shall have attained the age of twenty-one years,” the objection fails; there seems to be ample authority for such a construction.

In Butler v. Butler, 3 Barb. Ch. 304, the testator gave a sum in trust to invest and pay over the income to a life-tenant “ until her eldest child should arrive at the age of twenty-one years; and at that period to divide the same, as it may exist, into as many shares as there may then exist children of the said S. M. Butler, and to pay over to each cMld his or her share on arriving at the lawful age of twenty-one years.”

*746■' At the death of the testator the life-tenant had four children living. . It was held that by the “ eldest child ” the testator referred to the eldest child, at the time of making the codicil and not the eldest child which she might have whc should attain the .age of-twenty-one.

“ For in the last case,” said the chancellor, “ the power of alienation might be suspended for more than two lives in being at the death of the testator, before the contingency would happen by which the estate in remainder would vest in interest. And in the construction of wills, if the language of -the testator is such that it may be construed in two different senses, one of which would render the disposition made of his property illegal and void, and the other would render it valid, the court should give that construction to his language which will make the disposition of his property effectual.”

In Dubois v. Ray, 35 N. Y. 162, the testator, who left him surviving two children, gave_ his property to them for life, with remainder, in case .they both died without issue, “ to the children whom "my brother, Robert Ray, and my sister, Mary Ring, may leave.” It was considered that the remainder could only be saved by reading the words “ may leave ” as equivalent in intention to “ may- have at the time of my death; ” and such Was the' construction adopted.

- In Van Gott v. Prentice, 104 R. *Y'.*45,- the trust deed directed distribution “ when the youngest of said (three) surviving children shall - come of age,” a life estate for the life of the settlor having been-ffrst created; and it was held that the survivorship was “ that existing at the date of the death of the settlor; and that the consequent duration of the trust is during the life of the settlor and the minority of the youngest of the three children *living at Ms death." .*

In Roe v. Vingut, 117 N. Y. 204, the testator provided that, “on the arrival of my youngest grandchild at the age of twenty-one years ” and on the death of- another life-tenant, the property should be divided.- It was held that there was meant the youngest grandchild *“ living at the time of my death."*

The court said:

“ If a general scheme can be found to have been intended and provided for in the instrument, and such general scheme is consistent with rules of law; and so may he declared valid, it is .the duty of courts to effectuate the main purpose of the "testatrix. To ac*747complisk such object the meaning of words and phrases, used in some parts of the will must be diverted from that which would attach to them if standing alone, and they must be compared with other language used in other portions of the instrument, and limitations must be implied, and thus the general meaning of all the language must be arrived at * * * .

“We are impressed, in common with the courts below with the exceeding difficulty attending a construction of this will. A construction quite inconsistent with that which has been here adopted might be supported by many and weighty arguments.. It would, perhaps, come as near to the intention of the testatrix as the one wé have adopted. But it would also render the trust illegal and utterly destroy the provisions of the will. The construction which has been herein adopted brings us, as we think, quite as near the intention of the testatrix as the other would have done, and neither construction can be said to do violence to her intention, so far as that intention can be discovered from a most attentive examination of the instrument itself. Tills makes it a strong and clear case for the application of the doctrine already alluded to, and brings us to the point of adopting that construction which, while doing no violence to the intention of the testatrix, at the same time sustains the trust and the devise mentioned in the will, rather than defeats them.”

The assumption of the proposition, which the foregoing cases have been cited to support, was that there were no expressions elsewhere in the will inconsistent with the construction suggested. This is not wholly true of the will in the case at bar; and it is, therefore, not altogether free from the difficulty which for the same reason the court recognized in the case last cited. To quote the language of the will once more, the limitation is “ to the wife and *children*of my son Henry ' *■ * * until his youngest *child*shall have attained the age of twenty:one years.” "The difficulty becomes apparent when we express more fully the apparent meaning of the testator’s words:

“ To the wife and children of my son Henry, both those who ' may be living at the time of my death and any who may be subsequently born or begotten during the continuance of the trust hereby created, until the youngest of such children shall have attained the age of twenty-one years.”

In order to sustain the limitation, it is evident that the words “such children” must be deprived of their ordinary function of carrying over to the second clause the significance given to the same *748words in the antecedent one, and be held instead to relate to one only of the two classes of children there described.

The Court of Appeals has recently had occasion to observe (U. S. Trust Co. v. Black, 146 N. Y. 1, 13), that “ We cannot say, as a matter of law, that testators always mean precisely and definitely the same tiling when th'ey use the same expression in different parts of their wills. It is a good' rule to say that generally they do. It is always, however, a question of intention.” That, -in the use of the phrase “ such children,” following a reference to children begotten both before and after the testator’s death, the testator should, where otherwise his gift would fail for invalidity, be. considered to intend only those begotten in bis' lifetime, was the exact point upon which turned the “notable case” of Mogg v. Mogg, 1 Mer. 654, cited and approyed in Dubois v. Ray, *supra.*Mogg v. Mogg came before the master of the rolls in 1812, and upon a case stated by him before the King’s Bench. It was elaborately argued before both courts, and both concurred in their construction of the will. In it there were a number of different limitations to be considered, only two of wThich need be noticed here. The testator’s real estate at High Littleton he .devised upon certain trusts- during the life of his son, and, in default of issue.of the son, “ from and after the de- ■ cease of the son,” the testator gave and devised the principal and accumulations “ unto and equally among the child and children begotten, and to be begotten on the body of his daughter, Sarah Mogg, during his, her and their life and lives; and from and after the decease of such child and children, I give and devise the same unto the lawful issue of such child and children of my said daughter, Sarah Mogg, to hold unto such issue, his, her and their heirs, as ten- *,*ants in common.”

. Other real estate, known as the Mark estate, the testator devised in trust to, “ equally pay and apply the. issues and profits thereof towards the support and maintenance of the child and children begotten and to be begotten of his said daughter, Sarah Mogg, during ‘his, her and their life and lives; and after the decease *of such cMldren*he gave and devised the said estate to the lawful issue *of such child and children*of his said daughter, Sarah Mogg, to hold unto such issue his, her and their hems as tenants -in common without survivorship.”

The son survived the testator and died without issue. At- the date of the will Sarah Mogg had two children living. At the testator’s death two others had been born. At the death of testator’s son *749another had been born, and a sixth was *en ventre sa mere.*After-wards still three others were born.

As to the estate of High Littleton, it was held in the first place that by the gift after a precedent life estate or life estates, to his daughter’s children with remainders to their issue, the testator must under the rule in Shelley’s case be considered, to have given to his daughter’s" children, estates intail general, and, as such a devise could be made only- to persons *in esse*at the determination of the precedent life estate, to have, intended. by this devise to children begotten and to be begotten on “the body of my daughter, Sarah Hogg,” “children begotten and to be begotten on the body of my daughter, Sarah Mogg, *during the life of the life-tenant,”*and hence that "it was a valid remainder to the six eldest children, including the one *en ventre sa mere*at the son’s death; but excluding the three subsequently born.

As to the Mark estate, the limitation was considered to be governed by the rule that life estates to persons not *in esse*could be created only if the remainder vested *eo i/nstanti*on the death of the testator. It was held, that, while the testator’s words in the gift of the life estate “to the child and children, begotten and to be begotten of his said daughter, Sarah Mogg, during his, her and their life and lives,” must be allowed to include in accordance with the testator’s plain intention all the nine children, those born after as wall as before Ids own death, yet the reference in the clause .immediately following, in which “ he gave and devised the said estate to the lawful issue *of such child and children*” of his said daughter, must, to save the remainder, be intended to be to such child or children begotten or to be begotten, etc., *and Uving at the date of my death.”*

*,*And it was adjudged accordingly, that the nine children tr took as joint tenants, an equitable estate for their lives and the life of the survivor ” in the Mark estate, “ with remainder in fee-simple to the issue collectively of the four eldest of such children ” (being the children born in the lifetime of the téstator).

This case appears to have opened a path of judicial construction in the direction which the corat is obliged to take, and considerably beyond the point to which it is obliged to go, in order to sustain the limitation in question in the .case at bar. That accordingly is held to be for the joint lives of the testator’s widow and for the minority of his grandchild, the defendant Eleanor T. Oogan, for the use of *750the widow during her life, and after her death for the use of the defendant Georgina T. Oogan, and her children; born and to be born during the existence of the trust, with remainder to such children, contingent upon their .surviving until the termination of the trust, by the defendant, Eleanor T. Oogan attaining her majority or dying during her minority. Whatever question may at one time have existed as to the validity of a limitation upon the life of an infant born after the death of the testator, but *en ventre, sa, mere*at the time, I understand to have been finally set at rest by the •famous case of Thellusson v. Woodford, 4 Vesey, Jr., 227; 11 id. 112. There the limitation was not only upon the lives of such infants, but for the benefit of' third persons; and its validity was affirmed in all the courts after exhaustive argument by most learned counsel.

A minor question is presented concerning the disposition of the net proceeds of one of the usual equity suits against the elevated railroad, in which the plaintiffs received damages for loss of rents occasioned to the trust property by the maintenance and operation of the railroad, and uPon- the conveyance of the. easements taken were paid a further sum, supposed to represent their value. Such proportion of the net proceeds as represents rental damages which accrued before the death of the widow is payable to her executor or administrator; one-fourth of the remainder of the rental damages to the use of the defendant Georgina T. Oogan, and her children, and the remaining three-fourths, together with three-fourths of the sum representing the award for fee damages, among the representatives of the other three stocks in the same manner as their shares of the main trust fund. The remaining one-fourth of the award for fee damages constitutes a part of the fund to be held in trust during the minority of the infant, Eleanor T. Oogan. The defendants Mc-Cabe contend, however, that by the will of Mrs. Oogan, which is in evidence, she has estopped herself and her estate from claiming any portion of the proceeds of this suit. This position is not sound. Mrs. Oogan in her will, says in effect, that by arrangement with the trustees she has collected' directly, instead of through them, the rents of the real property, and she, therefore, releases them from all liability for such rents as they, owing to that - arrangement, did not collect. This is very far from releasing them from liability to account for certain damages in the nature of rents which not only she herself did not, but which they did, collect. '

*751Mrs. Oogan’s personal representatives are not, however, parties to this action; and their absence is pleaded as a defense in the answer of Henry Cogan, the general legatee under her will. It is obvious that until they be brought in, the plaintiffs cannot obtain the complete discharge they seek. Their attorney may present an order providing for the issue of a supplemental summons to the executor or administrator *c. t. a.*as the case may be, requiring him to answer the complaint and the necessary supplemental complaint. Let the order recite the trial, and the conclusion of the court that without the presence of this executor or administrator a complete determination of the controversy cannot be had; and direct that the trial stand over until such executor or administrator shall have been brought in and shall have interposed his answer or demurrer. Peyser v. Wendt, 87 N. Y. 322; Hood v. Hood, 85 id. 561. Or if he shall default, or raise no issue for trial by his answer, and if none of the present defendants themselves shall by their answers to the supplemental complaint raise new issues for trial, then, upon that fact being made to appear to the court, a decision (in short form) and an interlocutory judgment may be presented for settlement, construing the will in accordance with this opinion and appointing a referee to take and state the account of the plaintiffs; upon the coming in of whose report final judgment may be entered directing distribution and settling the account of the plaintiffs, and making such award of costs as may then be considered proper. In case the plaintiffs ah all fail within a reasonable time to bring in the executor or administrator c. *t. a.*of Mrs. Oogan, the parties " will be heard upon the question whether the complaint should be dismissed *in toto,*without prejudice to a new suit, or whether the plaintiffs may take a • judgment construing the will but refusing to take or state their account.

Ordered accordingly.