#### Matter of the Judicial Settlement of the Account of Frederick W. Jagel, as Executor of Julius M. Jagel, Deceased.

(Surrogate’s Court, Kings County,

January, 1913.)

Wills — construction — devolution of interest — direction for sale of real and personal property.

Where a will in one paragraph directs the sale of certain real and personal property and an equal division of the proceeds of such sale among testator’s children and certain of his grandchildren, and, in the next paragraph, a daughter of testator is given all his right, title and benefit in a fraternal organization, and all the beneficiaries survive testator, the gifts under the first paragraph vest at the death of testator and the interest of a grandchild upon her death passes to her legal representatives and not to her next of kin; and a decree judicially settling the account of testator’s executor cannot be entered unless such legal representatives are brought into the proceeding.

Proceeding upon the judicial settlement of the account of an executor. ■

Egbert K. Van Beuren, for accounting executor.

O. H. Fuller, special guardian for Louis ¡N". Jagel, Veronica Amrhein and Dorothy Jagel, infants.

Otto Scheillce, for Julius 0. Jagel.

Ketcham, S.

The executor accounts under a will which in part is as follows: The testator, after directing the sale of certain real estate and personal property described, directs in paragraph four that, “ after the sale of said real estate and personal property, the proceeds shall be divided in equal parts among his children ” and certain grandchildren named, eleven persons in all, including a granddaughter, Marie Jagel.

He then proceeds:

*184“ V. To my daughter, Louisa, I give in addition to her share in aforementioned property all my right, title and benefit that I am entitled to in The Masonic Mutual Benefit of Mew Haven, Connecticut.”

All of the eleven beneficiaries under these provisions survived the testator, and Marie Jagel has since died.

In paragraph IV of the will the only words of gift are found in a direction to divide and pay at a future time. Unless, therefore, the words in that paragraph are qualified or expanded by other portions of the will the gift is future, not immediate; contingent, and not vested. Matter of Crane, 164 N. Y. 71, 76.

The rule, under which gifts contained in a direction to divide and pay are declared to be future and not vested, must yield readily to anything in the will which appears to indicate a contrary intention. Roosa v. Harrington, 171 N. Y. 341, 351, and cases cited.

Paragraph V contains a clear intimation that the gifts to each of the distributees named of a portion of the proceeds of the sale to be divided in the future are intended by the testator to vest at his death. The daughter, Louisa, named in the fifth paragraph is one of the distributees named in the paragraph for division. Her interests as to the property to be sold for the purpose of distribution are regarded and described by the testator as “ her share in aforementioned property.”

It is as if the testator had said, *“*My gift to Louisa of an interest in the proceeds of the sale of the property mentioned in paragraph III is in my sight a gift to her of a share in the property itself.” Such gift must vest at death and the conception that it vests as to one whose sole right springs from a direction to divide among many involves the intent that all the pérsons named as participants shall have the same vested share as to the property which is the subject of sale and division.

The decree will proceed upon the finding that Marié Jagel took a vested interest in the proceeds of the sale of the property, real and personal, which is mentioned in paragraph IV *185of the will and that upon her death the same interest passed, not to her next of kin, as contended, hut to her legal representatives.

This decree cannot be entered unless the representative of Marie Jagel is brought into the proceeding.

Decreed accordingly.