#### J. Hampden Dougherty and David Stewart, as Trustee, etc., Plaintiffs, *v.*John C. Thompson, et al., Defendants. J. Hampden Dougherty, as Trustee, etc., Plaintiff, *v.*John C. Thompson et al., Defendants.

(Supreme Court, New York Special Term,

June, 1899.)

¡Remainder — Vesting- — Classes, of distributees to be determined as of the testator’s death — Provision that a deceased member, of a class shall take its parent’s share, does not make thé share contingent.

Where a testator. explicitly directs that portions of his estate, primarily devoted to other purposes,, shall, Upon the failure thereof, fall into the residuum, his omission to provide for any principle of survivorship in certain trusts where the remainder was directed to be paid upon the death of the bqneiiciaries, in one case, to the children of a beneficiary, and, in the other, to he. divided among, the grandnephews and nieces of the testator, indicates an intention, upon bis part that the class of distributees was to be determined at the time of his own death,- and -not at the time when the trusts should Ibe-terminated, and therefore the share of a beneficiary's child, who ■died after the testator -and during the existence of the trusts, is de-. visable by the child as a vested remainder. A provision that a deceased member of a class shall take its parent’s share does not necessarily , make the share of the parent contingent and have the effect of continuing the existence of the class until the. termination -of the trusts, as the true construction qf. such a prcvisicn is. to give a parent, whc survives the.testator and dies withqut issue, a present vested interest which remains in him until death, and which is.-there- , 'fere, devisable by him.

Action for the construction of a will'.'

J. Hampden Dougherty and C. C. Hoge, for plaintiffs.

Charles E. Lydecker, guardian *ad*litem, for Richard H. Thompson.

Eustace Conway, for defendants Jennie M. Thompson and John C. Thompson, individually and as executors, and John C. Thompson, as guardian *ad litem*

*739George Landon, guardian *ad litem,,*for Frank Thompson.

H. Snowden Marshall, for defendants Stewart and others.

H. B. B. Stapler, for defendant Josephine Thompson, individually and as administratrix.

William T. Tomlinson, for defendant Marie Louise Norris.

Pearce Barnes, guardian *ad*litem, for defendant Dorothy L. Norris.

Levi S. Tenney, for Nina O’Donnell, and guardian *ad litem*for Louise Courtney O’Donnell.

Bookstaver, J.

These two. separate actions are brought by trustees for the construction of the separate trusts created in clauses third and ninth of the: will of William D. Thompson, deceased.

The third clause is as follows:

*“*Third. One other of said shares, amounting at par to one hundred thousand dollars, I give and bequeath unto my executors herein named, or such of them as shall qualify and act as executors of this my will, the survivors and ■ survivor of them and their successors and assigns, upon the trusts and to the intents and uses following — that is to say, to collect and receive the interest and dividends thereon falling due after my decease, and out of the net income, to apply to the use of my nephew, William D. Thompson, Junior, of Baltimore, in the state of Maryland, the annual sum of seven hundred dollars, to be reckoned from the time of my death and payable. half-yearly during his life; and the whole residue of such net income to apply to the use of Josephine, the wife of the said William D. Thompson, Junior, and their children, by paying the same to her for the support of herself and children during their minority; and as each child -attains the age of twenty-one, he or she shall be entitled to receive one equal share of such surplus of income above seven hundred dollars per annum, the same being divided into as many equal shares as there shall.be children of the said William D. Thompson, Junior, and Josephine, his wife; and one more share for the said Josephine, which she shall be entitled to *740receive for her own use during her life, after all the said, children shall have attained the age- of twenty-one. ' .

“In" case of the death of the said William D. Thompson, . during the life of said wife, the portion of income hereinbefore set apart for him is to be' added to the. other shares in equal proportion.

“In case the said Josephine shall at any time marry'another husband, the right to a share of said income shall thenceforth cease. In Which event, or in the event of her death during the .lifetime of said William D. Thompson, Junior, the share of. incomes hereinbefore set apart for her shall be added- to the shares of the said children in equal proportion.

“ Upon the death of the longest liver of them, the said William' D. Thompson, Junior, and Josephine, his wife, this trust shall cease, -and the trustees shall forthwith transfer and pay over the whole of the trust property and the proceeds and increase thereof to the children of the said William D. Thompson, Junior, and Josephine, his wife, and if any of said children shall have died .leaving issue,-such issue shall, receive their'parents’.share.

"“In case the said-William D. Thompson, Junior, shall" attempt ' to obtain, use, ór in any manner control, any part of the income herein or elsewhere in my'will bequeathed to the- use of his Wife ■and children, or shall take proceedings before any court or .tribunal, with the intent of contesting of impeaching the validity . of-this will, then and in either of such cases I do hereby revoke the above bequest or trust in his favor, and I direct that the amount of income hereinbefore' set apart for "him be added in ■ equal proportion to the shares .of incoine set apart for his wife and children, and for his children alone, from the time when his wife’s interest, therein shall cease.

“ In like "manner I expect the.said Josephine,- his wife, to do all in her power towards carrying the provisions o’f this clause of my . will into effect in good faith; and if she shall voluntarily violate or evade the same, or permit the same to be violated or evaded, it is my will .that thenceforth her interest in the Said income shall cease, and her share thereof be added to the shares of the children in equal proportion.” "

The-ninth clause is as follows:

“ Uinth. The foregoing bequests being first fully provided for, and-not otherwise, I give to my nephew John B. Thompson, for his life, my building and lot ETo. 139' Broadway, in, the. city of *741Hew York; and upon his death, I give and devise the same to my said executors, the survivors and survivor of them, their successors and assigns, upon trust, to receive the income thereof, during the life of John 0. Thompson, son of the said John B. Thompson, and apply the same as follows: One-quarter to the use of the said John 0. Thompson and one-quarter to the use of his mother, the wife of the said John B. Thompson; and- if she shall die or remarry within said term, then from that time to apply-the entire half of said income to the use of the said John ,0. Thompson and the other half to apply during the whole of said term to the use of all the other grandnieces and grand-nephews of mine in equal shares, the issue of any deceased taking their parents’-share; and upon the death of the said John 0. Thompson, to sell and convey, the said property in fee, and to distribute the ■ proceeds among all my grand-nieces and grand-nephews in equal ' shares, the issue of any deceased grand-nephew or. grand-niece taking their parents’ share.”

The testator died on the 27th day of June, 1874. At that time, William D. Thompson, Jr., and Josephine, his wife, had three children, the defendants, Marie Louise Horris, Maria O’Donnell, and Stephen J. Thompson,' now deceased; and no more were ever born to them. ,

The controversy Concerns the interest of Stephen J., who died in April, 1897, in the two trust funds. His mother Josephine and the defendant John 0. Thompson survived him, and are still living. Therefore, the two trusts under clauses third and ninth, above quoted, still continue.

The contest is a triangular one amongst the various defendants, the three positions taken being as follows:

*“*First. Josephine L. Thompson claims income and • principal under a will of Stephen Jay Thompson made July 2, 1892, by which he devised and bequeathed all his property to her. She contends that Stephen Jay Thompson ,_took vested estates at William D.' Thompson’s (the .testator’s) death, which he could transfer by his will and that income and principal became transferred to her thereby.

“ Second, The cobeneficiaries of Stephen Jay Thompson in the two trusts claim that the income as well as the trust estate in each belong to such of them as are his survivors; claiming that in each- trust the testator formed a class of beneficiaries; that ‘ the children of William D. Thompson, Jr., and wife ’ were such in *742the'trust in the third clausemf the will; and the testator’s ‘ grandnephews and nieces ’ were- such in the ninth clause, and that the income which has accrued on the dead beneficiary’s share since- his ' death, and which shall accrue hereafter, in each trust, belongs to - them as his survivors. ,

' Third. The defendant John" 0. Thompson, as trustee, and 'also he and Jennie M. Thompson, as-executors of John B. Thompson-(and who were also the residuary devisees and legatees .under ■ William D. Thompson’s will), claim: •'

“ (á) That the interests of Stephen Jay Thompson, ifi the trust - estates were' contingent, arid did not and could not vest until- the ■"time of: their distribution, and that he having died childless before that time, his interest in the trust estates lapsed and passed into the residuary estate of the testator; that, not being, vested,. .. Stephén Jay Thompson.' could not -transfer them by will.

“ (b) That there is no devise or bequest for the benefit of a class,

“ (c). That even though there was, -the class would be. such as existed at the testator’s, death and not those who survived at the date of distribution. That each of the beneficiaries could take and hold'his or her estate-at.time of distribution separately and only as tenants, in commbti, 'both by the express language of the "will (‘in equal shares ’) .and by-the statute ¿of the state of Hew York against joint tenancy; ánd that Stephen Jay Thompson-having died before' the vesting of his interest, the same lapsed and fell into the residuary estate.”

In order to. properly understand and construe the two clauses presented in the’ complaints for adjudication, it is necessary to quote certain other portions, as follows:

“ Seventh. The house and lot of ground in the city of Baltimore, lately purchased and now owned by me in fee, known as . Ho. 80 (eighty) Chase street, in said city, I give- and devise for the term of her life to my sister-in-law, Rebecca R. Thompson, ■ the widow'of my deceased brother Stephen; and upon her death to -her two daughters, Elizabeth Y; Thompson and Mary R. Thompson,'if they shall survive her, or shall die during her lifetime leaving issué, to have and to hold to them,, their heirs and assigns forever. In case either of them should die during the lifetime of -their mother without issue, I give and devise the said house..and lot to the surviving daughter, her heirs and assigns forever, in case she shall survive her mother, or die before her *743leaving issue. But if neither of the said daughters shall survive their mother nor leave issue, *then it is my will that the said house and lot form part of my residuary estate.*

*“*Tenth. After making various provisions for charitable and educational uses this clause proceeds as follows:- *‘*If it shall he determined, that this bequest is not valid under the laws of the state of New York, and the same shall fail for that reason, then my will is, that the sum of money in this clause mentioned shall not be deemed undisposed of by my will, *but shall be added to and form part■ of the residue of my*estate, to be disposed of as hereinafter provided. If this bequest shall fail in whole or in part hy reason of a failure to make and complete the distribution within the two lives hereinbefore specified for that purpose, and cannot be lawfully completed thereafter, then, upon the absolute termination of the said trust, I give and bequeath the said sum, or so much thereof as shall then remain undisposed of, to and among all my grand-nephews and grand-nieces *then*living, and the issue of any deceased grand-nephew or grand-niece in equal shares, such issue taking the share their parents would have taken if living. In case there shall be any legal objection which prevents the said distribution being extended to corporations organized under the laws of another state, then this bequest shall not for that reason fail, but the distribution shall be limited to corporations organized under the laws of 1;he state of New York.” ' The provisions of the seventh and tenth clauses (and like provisions are found in other parts of the will) explicitly directing that portions of the estate,, primarily devoted to other purposes, shall, on the failure of such purposes, become a. part of the residuary estate, show the extreme care and minuteness with which the testator thought out and expressed his scheme of disposing of his property in various contingencies and correspondingly diminish the likelihood that he intended (as claimed in contention third as above set forth) any lapsing of the legacy given to Stephen J. and the falling back of that portion into the residuary estate. Judging from other parts of the will, if any such falling back into the residuary estate had been intended in the case of the trusts in question, it would have been expressed, as it was, elsewhere in the instrument where there was such an intention.

The direction in clause tenth for a distribution of the fund there set apart *“*among all my grand-nephews and grand-nieces then living,” is very significant upon the sécond contention as *744above stated. Having expressly provided by suitable words for survivorship in one part of the will, there is a strong inference that where such words are not used they were not intended. That is to say, the direction, in the third clause that the trustees shall, upon the. termination of the trust, “ pay over the whole óf the trust property and the proceeds ánd increase thereof to the children of William D. Thompson, Junior, and Josephine, his wife,”' and the similar direction in the ninth clause, upon the. termination of that trust, “ to sell and convey the said property in fee, and to distribute the proceeds among’ all my grand-nieces and grand-nephews in equal shares ” must be taken to refer to the respective classes as they existed at the time of the testator’s death, and not at the respective times of the termination of the trusts.

My conclusion, therefore, is that Stephen J. Thompson took a vested interest which he could dispose of by will and that the contention numbered “ First ” above is the 'correct one.

In reaching this conclusion I have not overlooked the provision in both clauses that the issue of a deceased member of the class should take the parent’s share. This would seem to make the interest of - the parent contingent and to intend the classes as existing at'the termination of the respective trusts. Such is not, however, the necessary Qresult of such a provision' and is not, in my opinion, the result in -this case. The • situation here is depicted by the language of Peckham, J., in Bowditch v. Ayrault,. 138 N. Y. 229: “ Understanding, of course, the uncertainties of life, he provides for a substitution of the descendants of those children who may be deceased when the estate, qr any part,, is to be distributed, the descendant to take the share which the parent would have taken if living. The gift is, however, in substance to the children Irving, at his decease, and we Think it .then vested, subject to be divested by the death of any child, before distribu-, tion,. and by the substitution of his or her descendants, if any were left. If there were no such descendants, then the property remained vested in the child, and upon .his death formed-part of his estate, subject to be disposed of as the law or his will provided.”

Present decree framed in accordance with the views -above expressed and notice same for settlement on some day prior to June 28, 1899..

Ordered accordingly.